R. v. McDougall (M.), 2014 MBCA 95

Citation: R. v. McDougall (M.), 2014 MBCA 95 Date: 20141020 Docket: AR 14-30-08228 IN THE COURT OF APPEAL OF MANITOBA BETWEEN : HER MAJESTY THE QUEEN ) A. Y. Kotler ) for the Applicant ) Applicant ) A. L. Sansregret and ) J. R. Mason ) for the Respondent - and - ) ) Chambers motion heard: MARK JAMES MCDOUGALL ) September 25, 2014 ) ) Decision pronounced: (Accused) Respondent ) October 20, 2014 MacINNES J.A. [ 1 ] The Crown moves for leave to appeal the accused’s sentence. [ 2 ] Originally, the Crown’s motion was brought pursuant to s. 839(1) (

a) of the Criminal Code (the Code ). However, when it came on for hearing, the Crown asked to amend its motion to proceed instead under s. 830(1) of the Code . Accused’s counsel consented to the amendment, which I granted. [ 3 ] The facts underlying the motion are not in dispute. The sentence which the Crown wishes to appeal is one imposed for a

summary conviction offence. [ 4 ] At the sentence hearing before the

summary conviction judge, the accused requested credit for pre-sentence custody at the rate of one and one-half days for every day he had spent in custody (1.5:1). The Crown argued that the accused was not eligible for enhanced credit as his bail had been revoked by consent, but without any subsequent application for release. [ 5 ] Determination of this issue engaged consideration of s. 719(3.1) (as amended by the Truth in Sentencing Act , S.C. 2009, c. 29 s. 3) and s. 524(8) of the Code .

The sentencing judge acceded to the accused’s submission and granted him pre-sentence custody credit at the rate of 1.5:1. [ 6 ] In argument, I was informed that this case, as well as two other pending appeals, will raise the same issue on appeal; namely, whether revocation of bail by consent under s. 524(8), when not followed by an application for release, engages the provision of s. 719(3.1) of the Code so as to limit the entitlement to pre-sentence custody credit to the rate of one day for every day spent in custody (1:1). [ 7 ] I was further advised that the issue has been decided differently by the Provincial Court of Manitoba, one decision holding that the accused was limited by s. 719(3.1) to 1:1 credit, while the other two concluded that the accused was not so limited. [ 8 ] Accused’s counsel takes no position with respect to the Crown’s motion.

However, the Crown, accused’s counsel and defence counsel in the other two cases, wish to have all three appeals heard together by the same division of the Court of Appeal. This case, however, is the only one of the three where the sentence arises as a result of

summary conviction offences and where, therefore, the normal appeal route is an appeal under s. 813 to the Court of Queen’s Bench. As regards the other two, being sentences imposed in respect of indictable offences, the appeal route is to the Court of Appeal. [ 9 ] The Crown argues two points in seeking leave to appeal directly to the Court of Appeal under s. 830(1) of the Code rather than taking the normal route under s. 813.

The first pertains to timing and the second to practicality. [ 10 ] As to timing, the concern is that there may be insufficient time to follow the normal course of appealing to the Court of Queen’s Bench and then having to obtain leave from a judge of the Court of Appeal before being able to actually appeal to the Court of

Appeal and marry the case with the other two similar appeals, which are scheduled to be heard in March 2015. [11] As to practicality, the Crown argues that, if the matter were to proceed by way of a

summary conviction appeal to theCourt of Queen’s Bench, the unsuccessful party would, doubtless, wish to appeal to the Court of Appeal if timing permitted. It submitsthat obtaining leave would be virtually a foregone conclusion given the existence of the two other appeals pending on the identical issue. Thus, says the Crown, why put the parties to the additional work and expense of going through a process that almost certainly will resultin this case ending up in the Court of Appeal for determination? [12] Thus, the Crown amended its original motion for leave and now seeks leave to appeal under s. 830(1) of the Code. Analysis [13] The legislative scheme pertaining to appeals from

summary conviction offences under the Code is set forth in PartXXVII of the Code, which clearly creates two avenues of appeal; namely, an appeal under s. 813 and an appeal under s. 830. [14] As regards the former, the relevant sections of the Code are ss. 812-828; s. 813 creating the right of appeal and s. 822stipulating the power of the appeal court. As to the latter, the relevant sections of the Code are ss. 829-838; s. 830 creating the right ofappeal and s. 834 stipulating the powers of the appeal court. [15] In R. v. Petri (V.R.), 2003 MBCA 25, 173 Man.R. (2d) 96, Philp J.A. wrote (at paras. 4, 6-8 and 11): Two distinct and different rights of appeal are given in the Code in

summary conviction proceedings, and distinct and different powersare given to the appeal court in each case.

Section 813 provides for an appeal (in Manitoba, to the Court of Queen’s Bench) by adefendant or by the informant or by the Crown against determinations and dispositions in

summary conviction proceedings (the s. 813appeal). Unlike the provisions relating to appeals in proceedings in respect of indictable offences, leave to appeal is not required by adefendant, the informant or the Crown on a s. 813 appeal and there are no restrictions on the grounds that may be raised. The powers of the appeal court on a s. 813 appeal are found in s. 822(1) … . . . . . The second right of appeal in

summary conviction proceedings (in Manitoba, to the Court of Queen’s Bench or to the Court of Appeal) isfound in s. 830 of the Code (the s. 830 appeal). Section 830(1) provides: “830(1) A party to proceedings to which this Part applies or the Attorney General may appeal against a conviction, judgment, verdict ofacquittal or verdict of not criminally responsible on account of mental disorder or of unfit to stand trial or other final order ordetermination of a

summary conviction court on the ground that (

a) it is erroneous in point of law; (

b) it is in excess of jurisdiction; or (

c) it constitutes a refusal or failure to exercise jurisdiction.” The powers that the appeal court may exercise on such an appeal, however, differ from those that may be exercised by the appeal courton an appeal taken pursuant to s. 813. The powers of the appeal court on a s. 830 appeal are prescribed in s. 834(1) ….

The s. 830 appeal is now virtually indistinguishable in its form from a s. 813 appeal. (See the comments of Scott, C.J.M., in R. v.Higgins (M.D.) [(1994), (MB CA), 92 Man.R. (2d) 142], at paras. 30-32.) What distinguishes the two kinds of appealare not matters of form, but of substance; namely, the grounds upon which an appeal may be brought, the court to which it may be takenand the powers that may be exercised by the appeal court on the appeal. [16] An appeal under s. 813 is to an “appeal court” defined under s. 812 as being, in Manitoba, the Court of Queen’s Bench.

[17] An appeal under s. 830 is to an “appeal court” defined under s. 829(1) as being, in any province, the superior court ofcriminal jurisdiction for the province.

Section 2 of the Code defines “superior court of criminal jurisdiction” in Manitoba as the Court ofAppeal or the Court of Queen’s Bench. [18] The result is that, in Manitoba, a s. 813 appeal is brought to the Court of Queen’s Bench, whereas a s. 830 appeal maybe brought to the Court of Appeal or the Court of Queen’s Bench. [19] Of specific note, relative to the motion before me, neither s. 813 (s. 812 to and including s. 828) nor s. 830(1) (s. 829 toand including s. 838) requires the obtaining of leave to appeal to the “appeal court” as defined for the purpose of appeals under thosesections. [20] Lastly, s. 839(1) of the Code provides for further appeal from the appeal court to the Court of Appeal in respect ofsummary conviction proceedings, as follows: Appeals to Court of Appeal Appeal on question of law 839.(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 anyground 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. [21] In my opinion, an appeal to the Court of Appeal under s. 839(1) is confined to cases which have first proceeded to theCourt of Queen’s Bench, whether as an appeal from a decision of an appeal court under s. 822 (i.e., the s. 813 appeal) or from a decisionof an appeal court under s. 834, except where the appeal court is the Court of Appeal (i.e., the s. 830 appeal). [22] In other words, where the appeal is brought under s. 830 and the appellant chooses to appeal to the Court of Appeal(and not to the Court of Queen’s Bench), there is no right of appeal to the Court of Appeal under s. 839(1). [23] Of note, it is only by reason of the language of s. 839(1) that leave to appeal a

summary conviction to the Court ofAppeal is required. [24] The motion before me raises an issue of jurisdiction. It is trite law that appeals are solely creatures of statute and thatcourts of appeal have no inherent jurisdiction. A court of appeal cannot confer jurisdiction upon itself, nor can jurisdiction be conferredupon it by consent of the parties. Rather, such courts have only the jurisdiction given them by statute. [25] This case is a criminal appeal arising from

summary conviction proceedings. The governing statute is the Code andthis court has only the jurisdiction given to it by the Code. [26] The foregoing is consistent with the comments of La Forest J. in Kourtessis v. M.N.R., (SCC), [1993]2 S.C.R. 53 (at pp. 69-70): Appeals are solely creatures of statute; see R. v. Meltzer, (SCC), [1989] 1 S.C.R. 1764, at p. 1773. There is no inherentjurisdiction in any appeal court. Nowadays, however, this basic proposition tends at times to be forgotten.

Appeals to appellate courtsand to the Supreme Court of Canada have become so established and routine that there is a widespread expectation that there must besome way to appeal the decision of a court of first instance. But it remains true that there is no right of appeal on any matter unlessprovided for by the relevant legislature. [27] The Crown has chosen to appeal under s. 830(1) of the Code. It has a right of appeal within the parameters of thatsection. Nothing in that

section (or ss. 829-838 of the Code) requires that the Crown move for leave. Nor does it permit me to grantleave.

In my opinion, I have no jurisdiction to entertain the Crown’s motion for leave brought under s. 830(1). [28] Rather, the Crown, if it still wishes to do so, should simply proceed under s. 830(1) with its appeal to the Court ofAppeal understanding, of course, that in so doing, the court will be sitting as an “appeal court” pursuant to ss. 829(1) and 2 of the Code,and that its jurisdiction and powers will be determined under ss. 830 and 834 of the Code. [29] I conclude by noting that it is clear from a reading of ss. 813 and 830 of the Code that the jurisdiction of the courthearing a s. 813 appeal is much broader than that of the court hearing a s. 830 appeal.

Thus, the preferred course will ordinarily be, in

my view, an appeal to the Court of Queen’s Bench (see R. v. Orbanski (C.) , 2002 MBCA 20 at para. 4 , 170 Man.R. (2d) 6, per Twaddle J.A.). [ 30 ] In my opinion, the prudent course here is to appeal to the Court of Queen’s Bench pursuant to s. 813 of the Code . This avoids any jurisdictional argument as to whether, under s. 830, the Court of Appeal as the appeal court has the jurisdiction to hear this case, a sentence appeal. [ 31 ] The motion for leave is dismissed. J.A.