R. v. Hyra, 2015 MBCA 17

Citation: R. v. Hyra, 2015 MBCA 17 Date: 20150130 Docket: AR14-30-08182 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Holly C. Beard Madam Justice Diana M. Cameron Mr. Justice William J. Burnett BETWEEN: HER MAJESTY THE QUEEN ) J. Hyra ) on his own behalf Respondent ) ) R. N.

Malaviya- and - ) for the Respondent ) JASON HYRA ) Motion heard and ) Decision pronounced: (Accused) Appellant ) January 30, 2015 BEARD J.A. (for the Court): The Issue [1] The accused has been charged with both criminal harassment under s. 264 of the Criminal Code and breaching hisprobation, and he has elected to be tried by judge and jury. He filed a pre-trial motion to have the charges stayed on the basis that theproceedings are an abuse of process, which motion was dismissed by the trial judge.

He has appealed that dismissal, which is not beforethis panel. [2] The Crown has filed a motion to have the appeal dismissed on the basis that this court has no jurisdiction to hear anappeal of an interlocutory ruling in a criminal matter. This particular hearing relates only to the Crown’s motion to dismiss the appeal.

The Parties’ Positions [3] The accused has acknowledged that interlocutory appeals are extremely rare in criminal matters, and he is relying on aline of cases that he says permitted an interlocutory appeal in a criminal proceeding where there was an allegation of a jurisdictional erroron the part of the judge. (See R. v. Moman (R.), 2008 MBQB 311, 234 Man.R. (2d) 149; Awasis Agency of Northern Manitoba v. Allen,2013 MBQB 47, 289 Man.R. (2d) 38; R. v. Felderhof (J.B.), [2002] O.T.C. 829 (Sup. Ct.), aff’d (2003), (ON CA),180 O.A.C. 288; R. v. S. (M.P.), 2013 BCSC 525, 298 C.C.C. (3d) 458; and R. v.

Eckstein (S.M.), 2012 MBCA 96, 288 Man.R. (2d) 26.) In this case, the accused is alleging that jurisdictional error occurred as a result of bias on the part of the trial judge in favour of theCrown, bias being a jurisdictional error that, according to the accused, gives this court the jurisdiction to hear this appeal. [4] The Crown’s position is that, while this court in R. v.

Ruston (1991), (MB CA), 71 Man.R. (2d) 49(C.A.), held that there was a right of appeal from a pre-trial decision affecting jurisdiction in that case, the reasoning was held not toextend beyond the “unique jurisdictional issue which arose in that case in the context of an application under s. 24(1) of the Charter” (seeR. v. Duvell, [1992] M.J. No. 213 at 2 (QL) (C.A.)). It argues that this accused has not demonstrated either an apprehension of bias orany “unique jurisdictional issue” that would provide the jurisdiction to hear this appeal.

Analysis and Decision [5] It is not necessary for the purpose of this motion to undertake a comprehensive review of the law regarding the right toappeal an interlocutory ruling in a criminal matter. This court’s position was made clear in Duvell, wherein Scott C.J.M., speaking forthe court, stated as follows (at pp. 1-2): In our opinion s. 674 of the Criminal Code is a complete answer to the appeal.

This section, and the recent cases that haveinterpreted it, when read in conjunction with s. 675 of the Code, makes it clear that no appeal may be taken from an interlocutoryproceeding or order by an accused until there has been a conviction. The only exception to this, but one that is not germane to these

proceedings, is the appeal allowed by s. 784 of the Code. The recent decision of this Court in R. v. Ruston (1991), (MB CA), 71 Man.R. (2d) 49, does not assist theappellant because the unique jurisdictional issue which arose in that case in the context of an application under s. 24(1) of the Charter isnot present here. (See also R. v. Deschamps (M.B.), 2003 MBCA 116, 177 Man.R. (2d) 301.) [6] The applicable legislation in this case is ss. 674 and 675 of the Criminal Code.

Section 674 states that no proceedingsshall be taken by way of appeal of an indictable offence other than pursuant to the Criminal Code.

Section 675 gives an accused theright to appeal a conviction of an indictable offence, but provides no right to appeal before there has been a conviction. [7] None of the cases upon which the accused relies are of assistance in this matter. Two of them, namely, Awasis andFelderhof, are not criminal cases to which the Criminal Code applies. More importantly, none of the cases involves an appeal to whichss. 674 and 675 apply. [8] The only decision that is at all relevant is Ruston.

It must be noted that courts in other provinces have declined tofollow that portion of the decision in Ruston regarding the right to appeal an interlocutory ruling in a criminal matter, but the correctnessof that decision is not before us. Like the situation in Duvell, the unique jurisdictional issue which arose in Ruston in the context of theright to elect a jury trial and an application for relief under s. 24(1) of the Charter is not present here.

Further, in the context of the factsin this case, none of the acts referred to by the accused support an allegation of bias on the part of the trial judge. [9] For these reasons, we have granted the Crown’s motion and dismissed the appeal on the basis that there is nojurisdiction to entertain an appeal by an accused of an interlocutory proceeding or order prior to conviction. J.A. J.A. J.A.