R v Douglas, 2016 MBCA 81

Citation: R v Douglas, 2016 MBCA 81 Date: 20160818 Docket: AR15-30-08456 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Holly C. Beard Madam Justice Diana M. Cameron Madam Justice Janice L. leMaistre BETWEEN : HER MAJESTY THE QUEEN ) R. I. Histed ) for the Appellant ) Respondent ) C. R. Savage ) for the Respondent - and - ) ) Motion heard: DAVID JOSEPH DOUGLAS ) February 24, 2016 ) ) Decision pronounced: (Accused) Appellant ) August 18, 2016 BEARD JA I. THE ISSUE [ 1 ] The Crown has filed a motion for an order quashing the accused’s notice of appeal related to the validity of two search warrants issued pursuant to

section 487 of the Criminal Code . The Crown’s position is that this is an appeal of an interlocutory order and this Court has no jurisdiction to hear a defence appeal from an interlocutory order prior to a conviction after trial. For this, it relies on sections 674 and 675(1) of the Criminal Code . [ 2 ] The accused argues that he is appealing the dismissal of his motion for relief by way of certiorari and to quash two search warrants, and he says that this Court has jurisdiction to hear his appeal prior to a conviction after trial. For this, he relies on sections 784(1) and (2) of the Criminal Code . [ 3 ] The two issues that are raised by this motion are: (

i) Is the right of appeal in section 784(1) of the Criminal Code subject to the limitation in sections 674 and 675 of the Criminal Code that restricts an accused’s right of appeal to final orders only? (ii) If the answer is no, does the accused’s appeal come within section 784(1) ? [ 4 ] As this is a motion for original relief, there is no applicable standard of review. II. THE FACTS [ 5 ] The RCMP began an investigation of the accused after receiving a number of complaints of fraud related to an alleged mortgage fraud scheme. To further the investigation, officers obtained two search warrants pursuant to

section 487 of the Criminal Code to search the accused’s residence and also his business located in his mother’s residence, including a vehicle, computers and electronic devices found at the properties. They were looking for “correspondence, contracts, agreements, legal correspondence, real estate files, mortgage documents or other documents”, which would provide evidence of the six specified theft and fraud offences. [ 6 ] A justice of the peace issued the two search warrants on February 26, 2014, and they were executed on March 4, 2014. At that time, the RCMP seized a considerable number of documents, computers, hard drives and other electronic storage devices.

[7] On April 8, 2014, the accused filed an application in the Court of Queen’s Bench under section 24(1) of the CanadianCharter of Rights of Freedoms (the Charter) for an order of certiorari and to quash the two search warrants, for the interim and finalrecovery of all of the seized property and for an order prohibiting the prosecution of any criminal proceedings described in the warrants. The application alleged, among other things, that the legal correspondence was subject to solicitor-client privilege and was, therefore,exempt from seizure, rendering that seizure a violation of his rights under

section 8 of the Charter. The accused argued that the issuingjustice exceeded her jurisdiction in issuing the warrant authorizing the seizure of that material. [8] Upon being advised of the application, the RCMP ceased cataloguing and examining the seized items and sealedthem. They eventually copied the documents and contents of the computers and other devices, retaining the copies under seal andreturning the originals to the accused. [9] By judgment delivered on September 3, 2015, the application judge dismissed the accused’s application and upheldthe warrants.

The accused filed his notice of appeal on September 14, 2015. It was not until December 8, 2015, after the appeal wasperfected, that the RCMP charged the accused with the counts of fraud and theft that formed the basis for the search warrants. Prior tothe hearing of the appeal, the Crown filed this motion to quash the notice of appeal. III. THE LEGISLATION [10] The relevant portions of the Criminal Code state:

PART XXI – APPEALS – INDICTABLE OFFENCES . . . Right of Appeal 674 Procedure abolished – No proceedings other than those authorized by this Part and

Part XXVI [regarding ExtraordinaryRemedies] shall be taken by way of appeal in proceedings in respect of indictable offences. 675(1) Right of appeal of person convicted – A person who is convicted by a trial court in proceedings by indictment may appeal tothe court of appeal (

a) against his conviction . . . (

b) against the sentence passed by the trial court, with leave of the court of appeal or a judge thereof unless that sentence is one fixed bylaw.

PART XXVI – EXTRAORDIANRY REMEDIES . . . 784(1) Appeal in mandamus etc. – An appeal lies to the court of appeal from a decision granting or refusing the relief sought inproceedings by way of mandamus, certiorari or prohibition.

(2) Application of

Part XXI – Except as provided in this section,

Part XXI [regarding Appeals – Indictable Offences] applies, with suchmodifications as the circumstances require, to appeals under this section. IV. IS THE RIGHT OF APPEAL IN SECTION 784(1) OF THE CRIMINAL CODE SUBJECT TO THE LIMITATION INSECTIONS 674 AND 675 OF THE CRIMINAL CODE THAT RESTRICTS AN ACCUSED’S RIGHT OF APPEAL TO FINALORDERS ONLY? The Parties’ Positions [11] The Crown argues that, when the criminal charges were laid on December 8, 2015, the appeal became interlocutory innature.

Its position is that any right of appeal that may have existed at the time that the appeal was filed, due to there being no existingcriminal proceeding, changed with the laying of charges. It relies on this Court’s decision in R v Scott (KD), 2015 MBCA 80 at para 4,323 ManR (2d) 69, and the Supreme Court of Canada’s decision in R v Primeau, (SCC), [1995] 2 SCR 60 at paras 11-12, for the proposition that an appeal of an interlocutory ruling in a criminal trial cannot be taken until the end of the trial.

[12] Further, the Crown argues that section 784(1) must be read in conjunction with the limitation in section 784(2), whichmakes

Part XXI of the Criminal Code and, therefore, sections 674 and 675, applicable to

section 784 appeals. The result, it argues, isthat there is no right to appeal under section 784(1) prior to the end of the trial. [13] The accused argues that the nature of the application to appeal must be determined at the time that the appeal was filed,or at least at the time that the appeal was perfected. In this case, at both of those times, no charges had been filed, so he argues that theorder was not interlocutory.

He argues that the Crown cannot change the nature of the appeal by subsequently filing charges. [14] On the jurisdictional issue, the accused’s position is that his right to appeal the dismissal of his application forprerogative relief is confirmed in R v NS et al, 2010 ONCA 670, 269 OAC 306 (appealed to the SCC on other grounds, 2012 SCC 72,[2012] 3 SCR 726), which differentiated the right to appeal a decision in a Charter motion from the right to appeal a decision in acertiorari application.

He argues that the former is an interlocutory appeal that must await the end of the trial, while the latter can beappealed at any time, under

section 784 of the Criminal Code. He further argues that, as his challenge to the search warrant is by way ofa certiorari application, his right of appeal is determined by

section 784 and not sections 674 and 675. [15] Finally, he disagrees that section 784(2) should be read to limit an appeal under

section 784 to an appeal of only a finalorder. Analysis (

i) certiorari [16] The principles that govern the granting of certiorari have evolved over the years, as is summarized in Skogman v TheQueen, (SCC), [1984] 2 SCR 93 at 98-99.

Certiorari is explained by The Hon EG Ewaschuk, Criminal Pleadings &Practice in Canada, 2nd ed (Toronto: Canada Law Book, 2015) (loose-leaf updated August 2014) as follows (ch 26 at 19): 26:2010 Nature of remedy Certiorari is the means whereby a superior court receiving a complaint of an injustice done to the applicant by an inferior courtwishes to be informed (certiorari) and therefore orders that the record of the proceedings be transmitted to it by the inferior court forexamination for jurisdictional defects, which, if found, may result in the quashing of the impugned proceedings. . . .

Certiorari is restricted to “jurisdictional review or surveillance” by a superior court of statutory tribunals. It does not include review ofmere errors of law but applies only where it is alleged that the other tribunal has acted in excess of its assigned “statutory jurisdiction” orhas acted in breach of the “principles of natural justice” which is taken to be an “excess of jurisdiction”. R. v.

Russell, 2001 SCC 53 , [2001] 2 S.C.R. 804, at para. 19 Where the certiorari is brought by a “third party” directly affected by the ruling of a provincial court judge, the applicant may establisheither jurisdictional error or an “error of law” on the face of the record. Dagenais v. Canadian Broadcasting Corp., (SCC), [1994] 3 S.C.R. 835 [See also R v Cunningham, 2010 SCC 10 at paras 57-58, [2010] 1 SCR 331.] Where the order of the inferior court “immediately and finally disposes of a legal right”, certiorari is available to the Crown for botherrors of jurisdiction and errors of law on the face of the record.

Where the order is of a “preliminary nature” only, the more traditionaljurisdictional error is required before the Crown can obtain certiorari. R. v. Black (2011), 2011 ABCA 349 , 286 C.C.C. (3d) 432 (Alta.

C.A.), at para. 25, leave to appeal to S.C.C. refused 2012CarswellAlta 720, 2012 CarswellAlta 721. [17] Certiorari has been used by superior courts to review a large range of decisions and orders by magistrates andprovincial court judges in criminal proceedings, including: granting an adjournment in excess of the time permitted in the Criminal Code(Doyle v The Queen, (SCC), [1977] 1 SCR 597); reviewing a committal for trial on various bases (Forsythe v The

Queen, (SCC), [1980] 2 SCR 268; Dubois v The Queen, (SCC), [1986] 1 SCR 366; and R v Russell,2001 SCC 53, [2001] 2 SCR 804); quashing a search warrant (Descôteaux et al v Mierzwinski, (SCC), [1982] 1 SCR860; R v Sanchez (1994), (ON SC), 20 OR (3d) 468 (Gen Div); R v Saunders, [1995] OJ No 3621 (QL) (Gen Div);Ciarniello v R (2006), (ON CA), 215 OAC 29, leave to appeal to SCC ref’d, [2006] SCCA No 424 (QL); R v Black(WJ), 2011 ABCA 349, 515 AR 319; and Express Transaction Services Inc c Canada (Attorney General), 2012 QCCA 1093 );reviewing a discharge following a preliminary inquiry (R v Deschamplain, 2004 SCC 76, [2004] 3 SCR 601); challenging a publicationban (Dagenais v Canadian Broadcasting Corp, (SCC), [1994] 3 SCR 835); reviewing a subpoena to a non-party witness(Primeau); and determining the right of a witness to wear a niqab while testifying (R v NS). (ii) right of appeal under section 784(1) [18] The Crown has not provided any jurisprudence that directly supports its position that the effect of section 784(2) of theCriminal Code is to limit an accused’s right to appeal an interlocutory ruling under section 784(1) of the Criminal Code to appealsbrought following conviction.

It relies on a very general statement in Primeau, which, in my view, does not support its position. I willaddress its position regarding Primeau later. [19] I, as well, have not found any jurisprudence that directly addresses the Crown’s

interpretation of sections 784(1) and(2). Thus, it is necessary to see how the relevant provisions have been applied by the courts. [20] The scope of the right of appeal in criminal matters became an issue of importance following the enactment of theCharter. Because the Charter does not contain its own procedural provisions for enforcing Charter rights, it was left to the courts todetermine those procedures.

In what is one of the seminal cases, the Supreme Court of Canada addressed this issue in Mills v TheQueen, (SCC), [1986] 1 SCR 863, in the context of an application by an accused for both a prerogative remedy and aremedy under section 24(1) of the Charter. [21] In Mills, the accused’s motion at the preliminary inquiry alleging a violation of his right under

section 11(

b) of theCharter to be tried within a reasonable time was dismissed. His application to the superior court for prohibition and certiorari to prohibitfurther proceedings and quash the ruling and for a remedy under section 24(1) of the Charter was dismissed on the basis that there hadbeen no violation of

section 11(b). He filed an interlocutory appeal regarding the prerogative writs to the Court of Appeal pursuant tosection 719 (now

section 784) of the Criminal Code, which was also dismissed.

The accused then appealed to the Supreme Court ofCanada, and one of the issues was whether the decision of the inferior court was susceptible to review before the end of the trial, eitheras a jurisdictional issue by prerogative writ or by an independent application to the superior court under section 24(1) of the Charter, andwhat right of appeal existed. [22] The consideration of the procedural alternatives related to the right to appeal an interlocutory Charter ruling led to thequestion of the nature of such a ruling and, in particular, whether a decision related to a violation of a Charter right was jurisdictional innature.

That was an issue because of the difference between the normal right of appeal under what are now sections 674 and 675, whicharises only at the end of the trial and does not permit interlocutory appeals, and the right of appeal arising under what is now

section 784related to the appeal of a prerogative remedy, which all of the judges presumed permitted an interlocutory appeal. In order to obtain aprerogative remedy in relation to an application for a writ of certiorari, however, the applicant had to prove either a jurisdictional errorrelated to the original ruling or a breach of the rules of natural justice. [23] McIntyre J, writing for himself and two other judges, agreed that the interlocutory appeal could proceed, but only inrelation to the prerogative remedy. He stated (at p 966): . . . An appeal was taken to the Court of Appeal under s. 719 [now

section 784] of the Criminal Code. This was dismissed by theCourt of Appeal who found no error in the proceedings below. While the motion of the appellant included a claim for non-prerogativerelief under the Charter, the appeal under s. 719 [now

section 784] of the Criminal Code could only apply to the prerogative portion ofthe application. That is all that is before this Court. . . . [emphasis added] [24] On the procedural issue, he found that the right of appeal in that case was limited to the prerogative portion of the claimbecause it was an interlocutory appeal and only jurisdictional relief by way of prerogative writ could be appealed on an interlocutorybasis. [25] Lamer J, writing for himself and Dickson CJ, agreed that the right of appeal before the end of the trial was limited to anappeal of a prerogative writ.

In referring to the right of appeal in what is now section 784(1), he stated that “the text . . . is, in any event,clear and unequivocal as to a general and unrestricted right of appeal” (at p 902). He acknowledged that the question of whether anappeal of a Charter remedy under section 24(1) was jurisdictional arose because the right to appeal before the end of the trial was limitedto questions of jurisdiction and extended only to a limited number of interlocutory Charter decisions (see p 901).

He stated that “onlythose remedies that would flow from a writ could be said to be open to appeal” (at p 901) and “[c]hallenges of interlocutory findingshave always been available by the mere allegation of jurisdictional error” (at p 903). [26] Lamer J proposed to resolve the procedural issue by finding that a violation of

section 11(

b) is jurisdictional in nature. He stated that, where such an issue arises in an inferior court, the accused could apply to a superior court under sections 11(

b) and 24(1),or for a prerogative writ, or both. Any appeal under what is now

section 784 would be considered an application for a writ and allremedies would be open to review (see pp 903-05, 907). [27] McIntyre J, in what became the majority decision, concluded differently (at p 965):

There will no doubt be cases where the claim for relief under s. 24(1) of the Charter will be based on an allegation of jurisdictional errorin respect of which prerogative relief in the superior court could be available. The two avenues to seek relief, that is, to the court inwhich the issue arises for an appropriate remedy under s. 24(1), or to the superior court for prerogative relief where the jurisdictionalground exist, will remain open but must be kept separate and applied according to circumstances. All Charter violations andinfringements will not be jurisdictional.

Remedies which may be ordered are not limited to prerogative remedy, that is, certiorari,prohibition and mandamus. These, of course, may be given where grounds for such relief, according to the law and practice which hasgrown up concerning them, are present. Otherwise, the remedy will be what the court considers appropriate and just under s. 24(1) ofthe Charter. [28] He found that an appeal under what is now

section 784 of the Criminal Code could only apply to the prerogativeportion of the original application, and that an appeal of the Charter remedies that were non-jurisdictional would have to be dealt withwhen the trial was completed, following the ordinary appeal procedure (see also pp 958-59). [29] La Forest J, writing for himself, found that an application alleging unreasonable delay did not give rise to ajurisdictional issue, with the result that there was no jurisdictional question that could lead to a certiorari or prohibition remedy. Heconfined his discussion to the availability of a

section 24 remedy, finding that there was no provision in either the Charter or theCriminal Code for an appeal and that the court should not create a right of appeal. (See pp 973, 978). Thus, he agreed with McIntyre J’sposition on this issue. [30] McIntyre J’s decision in Mills was applied by the Ontario Court of Appeal in R v Zevallos (1987), (ON CA), 22 OAC 76 at para 7. In R v Paquette (No 2) (1987), 1987 ABCA 228 , 83 AR 41 (CA), Stevenson JA, for themajority (Hetherington JA, in dissent but not on this point), stated (at para 22): Did the proceeding before the chambers judge seek prerogative relief?

As McIntyre, J., says in Mills at 965, two remedies may beavailable - one of which is prerogative relief where the violation can be said to be jurisdictional. . . . The applicant must choose the formof intervention. Mills appears to me to decide that if the prerogative remedy is sought, there will be a further right of appeal, while if theremedy sought is not a prerogative one neither the applicant nor the respondent will have an appeal. [31] In R v Duvell, [1992] MJ No 213 (QL), this Court was of the same view, stating (at para 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 theseproceedings, is the appeal allowed by s. 784 of the Code.

See also R v Lupyrypa, 2009 ABCA 36 , wherein the Court was of the same view. [32] The Supreme Court of Canada had to reconsider these procedural issues in the context of an application for prerogativeand Charter relief made by a third party, such as the media (see Dagenais), a non-party witness (see Primeau) and counsel for theaccused (see R v Cunningham, 2010 SCC 10, [2010] 1 SCR 331).

The majority in Dagenais held that, while none of the procedural,review and appeal alternatives were optimal, the one that fit best within the existing legislation was that related to prerogative writs,albeit with expanded grounds and remedial powers, in part, because it provided for an immediate appeal of orders made by an inferiortribunal under

section 784. (See Lamer CJ at pp 865-66, with the concurrence of McLachlin J (as she then was) at pp 942, 945-47.) [33] In Cunningham, the judge at the preliminary inquiry dismissed Ms Cunningham’s motion to withdraw as counsel ofrecord. She applied by way of certiorari to the superior court, which was refused, so she appealed to the Supreme Court of Canada. Incommenting on the procedure to review the decision, Rothstein J, for the Court, stated (at para 55): . . . Ms.

Cunningham had to apply for certiorari because there is no provision in the Criminal Code providing for interlocutoryappeals (see s. 674 of the Criminal Code). Once the superior court heard the application, Ms. Cunningham appealed to the Court ofAppeal (s. 784(1) of the Criminal Code). . . . [34] I would also note the decision of the Ontario Court of Appeal in R v Botting, (ON CA), [1966] 2 OR121. That case dealt with an appeal from an order quashing the committal of the accused for trial. Sections 784(1) and (2), in theirpresent form, had just recently been enacted.

Regarding the right of appeal set out therein, Evans JA said that he agreed with Laskin JAthat “s. 691 [now

section 784] of the Criminal Code provides an absolute right of appeal in certiorari applications” (at p 123). [35] Finally, the Crown also referred to this Court’s decision in Scott, wherein the Court found that it had no jurisdiction to

hear the appeal because it was an appeal of an interlocutory ruling, while the Criminal Code only permitted appeals of final orders. Thatdecision was very brief, dealing only with the notice of appeal before it. There was no indication that the underlying ruling related toprerogative remedies or section 784(1) of the Criminal Code, so the decision is of no assistance in this matter. [36] There have been many appeals of applications both granting and refusing prerogative remedies brought by one of theparties (as opposed to a non-party) that have been heard on an interlocutory basis with no suggestion that there is no jurisdiction toappeal under

section 784 before the end of the trial. See, for example, Doyle; Forsythe; R v Sagutch (1991), (BCCA), 63 CCC (3d) 569 (BC CA); R v Boutin (1990), 56 CCC (3d) 237 (Qc CA); R v West Fraser Mills Ltd, (BC CA);R v Rain (MM) (1994), 1994 ABCA 373 , 157 AR 385 (CA); R v Franks (GG), 2003 SKCA 70, 238 SaskR 1; R v Harrington(C) (2004), (ON CA), 181 OAC 395; Deschamplain; R v Papadopoulos (

S) et al (2005), (ONCA), 196 OAC 335; R v Stacey (RM), 2012 NLCA 22, 319 Nfld & PEIR 357; Express Transaction; and R v Clovis, 2013 ONCA 755. [37] In

summary, a review of the jurisprudence shows that the courts have interpreted the current provisions of the CriminalCode as providing two separate avenues of appeal relating to indictable offences: an ordinary or regular appeal, often referred to as a“criminal appeal”, which is governed by

Part XXI; and an appeal regarding the granting or refusal of a prerogative remedy, which isgoverned by

Part XXVI (see, for example, McIntyre J’s decision in Mills at pp 958-60). The limitation in

section 675 that prevents anaccused from appealing before conviction has not been applied to an appeal regarding the granting or refusal of a prerogative remedyunder section 784(1), which has been applied to provide an immediate appeal of interlocutory rulings in many cases. (iii) section 784(2) [38] The Crown argues that section 784(1): . . . must be read in conjunction with s. 784(2) of the Criminal Code which notes that

Part XXI [Appeals – Indictable Offences]applies to appeals under this section, with such modifications as the circumstances require.

Part XXI of the Criminal Code only provides for appeals of final orders. As argued above, the order appealed from is interlocutory. [39] In effect, the Crown’s position is that section 784(2) makes an appeal under section 784(1) subject to the provisions ofPart XXI and, in particular, sections 674 and 675. In my view, that is not the effect of the wording of the provision. Section 784(2)states as follows: Application of

Part XXI

(2) Except as provided in this section,

Part XXI applies, with such modifications as the circumstances require, to appeals under thissection. [emphasis added] [40] By this wording,

Part XXI applies to

section 784 except if

section 784 provides otherwise. Thus, if there areinconsistencies between the two, the provisions of

section 784 predominate. In other words,

Part XXI is subject to

section 784, ratherthan the other way around. Properly interpreted, the unlimited right to appeal a decision granting or refusing a prerogative remedy undersection 784(1) is, in effect, an exception to the limitation from appealing an interlocutory order in

Part XXI. [41] Further, the limitation regarding interlocutory orders in

section 675 is clearly spelled out. Had Parliament wanted tolimit appeals from the granting or refusing of prerogative remedies, it could have included the same wording in section 784(1). That hasnot occurred; section 784(1) contains an unlimited right of appeal. In my view, for this reason as well, section 784(1) should be given itsfull meaning. [42] How has section 784(2) been applied? While there has not been much judicial comment regarding the section, thejurisprudence that is available has generally considered this

section in the context of the powers of a court of appeal pursuant to section686. [43] In Sagutch, the accused was committed for trial following his preliminary inquiry. He was of the view that thepreliminary inquiry judge had lost jurisdiction by failing to follow the procedural rules in the Criminal Code, so he petitioned thesuperior court for certiorari to quash the committal. The application was denied, so he appealed to the Court of Appeal undersection 784(1) of the Criminal Code.

The Court of Appeal agreed that the superior court judge erred in finding that the preliminaryinquiry judge had not committed a jurisdictional error. [44] The Crown argued that, if there was a jurisdictional error, the appeal should, nevertheless, be dismissed pursuant tocurative proviso in section 686(1)(b)(iv) of the Criminal Code. While that provision appears in

Part XXI of the Criminal Code, theCourt of Appeal found that it was applicable to an appeal under

section 784 (at p 573):

I am persuaded that that

section can be invoked in this case. This is an appeal pursuant to s. 784 of the Criminal Code. Section784(2) provides that on an appeal from a decision refusing certiorari: “. . .

Part XXI applies, with such modifications as thecircumstances require . . .”. The modification which would be appropriate here would be substitution of the phrase “preliminaryinquiry” for the word “trial” in s. 686(1)(b)(iv). [45] This same result occurred in Rain. In that case, a provincial court judge ordered that counsel be provided to an accusedin a

summary conviction matter. The Crown applied for an order of certiorari and to quash the order of the provincial court judge,which was dismissed. The matter was appealed to the Court of Appeal, which determined that there was no jurisdiction to make theoriginal order. In determining what relief it could grant, the Court stated (at para 37): Since no appeal lies from the decision of the Provincial Court and this matter came to Queen’s Bench by way of certiorari, what isthe formal order which we should make? Section 784(2) of the Criminal Code says that on appeal from refusal of prerogative relief,the provisions of

Part XXI of the Criminal Code respecting appeals in indictable matters apply. That brings into play s. 686(4) whichallows us to order a new hearing, and s. 686(8) which lets us also make any order in addition which justice requires. [46] In the result, the Court granted an order in the nature of certiorari quashing the order of the provincial court judge andreturning the matter to the Provincial Court. [47] In Harrington and Papadopoulos, the Ontario Court of Appeal also used section 784(2) to access

section 686 to upholdcommittals for trial even though there was a jurisdictional error at the preliminary inquiry. In West Fraser Mills Ltd, the BritishColumbia Court of Appeal found that it could use section 784(2) to access section 683(3) of the Criminal Code and remit the matter backto the Provincial Court. [48] In conclusion, when hearing an appeal from the granting or refusal of a prerogative remedy, various courts of appealhave used section 784(2) to access the powers granted to a court of appeal on the appeal of an indictable offence.

I am not aware of anyjurisprudence supporting the Crown’s proposition that the application of section 784(2) prevents a party from appealing an interlocutoryorder granting or refusing a prerogative remedy under section 784(1). (iv) R v Primeau [49] I will now address the Crown’s argument that the following statement in Primeau supports its position that there is noappeal under section 784(1) from an interlocutory order (at paras 11-12): In Dagenais, the Court traces two separate paths to follow for challenges to orders made in a criminal proceeding: one for the partiesto the proceeding, another for third parties.

Both the accused and the Crown must apply for relief to the trial judge, or to the level ofcourt having jurisdiction to hear the trial, if known, or otherwise to a superior court judge. An appeal of such a decision must await theend of the trial. The procedure for third parties differs for two reasons. First, a third party, being outside the actual proceedings, cannot apply to thetrial judge for relief. Second, an order deciding an issue with respect to a third party is a final order.

Such a characterization is importantin order to comply with the general rule barring interlocutory appeals in criminal matters. [50] This extract from Primeau upon which the Crown relies was based on the Supreme Court of Canada’s decision inDagenais, which, in turn, was based on that Court’s decisions in Mills and in R v Meltzer, (SCC), [1989] 1 SCR 1764(see Dagenais at p 857).

In fact, what Lamer CJ, for the majority in Dagenais, said was “To seek or challenge a ban on appeal, theCrown and the accused should follow the regular avenues of appeal available to them through the Criminal Code (Parts XXI andXXVI)” (at p 857).

This was similar to McIntyre J’s statement in Mills regarding an accused’s right to appeal (see p 958). [51] In my view, when Sopinka and Iacobucci JJ stated in Primeau that “[a]n appeal of such a decision must await the end ofthe trial” (at para 11), they were referring to the right to appeal an ordinary ruling within a trial, not the right to appeal a ruling regardingan extraordinary remedy. They state in para 13 that a third party cannot apply to the trial judge for relief but can apply for certiorari tochallenge a decision by a provincial court judge. They go on to say (at para 13): . . .

By the reasoning of the Court [in Dagenais], the advantages of this route lie in its use of established procedures and its consistency withrecent decisions of the Court. Moreover, an immediate appeal becomes possible from an order granting or refusing to grant certiorarithrough the operation of s. 784(1) of the Criminal Code. . . .

[52] If the Crown’s

interpretation of Primeau is correct, it would stand alone for that proposition, which would beinconsistent with both the earlier and later jurisprudence. This is not a reasonable

interpretation to adopt, given that there is no analysiswithin Primeau to support such a change in procedure, when the statement can also be interpreted in a way that is consistent withthat jurisprudence. [53] Thus, I do not agree with the Crown’s position that Primeau stands for the proposition that an accused’s appeal undersection 784(1) of an order refusing a prerogative remedy must await the end of the trial. (

v) conclusion [54] For these reasons, I would find that an accused’s right to appeal pursuant to section 784(1) of the Criminal Code from adecision granting or refusing prerogative relief is not limited by sections 674 and 675 to appeals following conviction, but applies equallyto appeals of interlocutory orders. V. IF THE ANSWER IS NO, DOES THE ACCUSED’S APPEAL COME WITHIN

SECTION 784? [55] To come within

section 784, the accused must be appealing from a decision granting or refusing prerogative relief. Inthis case, the accused’s application to the Court of Queen’s Bench was stated to be an “Application Under Section 24(1) of The CanadianCharter of Rights and Freedoms”.

The relief being requested is an order of certiorari to quash two search warrants, an order for theinterim and final recovery of all property that was seized and an order of prohibition to prevent the Provincial Court of Manitoba fromproceeding with the prosecutions set out in the search warrants. [56] The application judge dealt with the matter as an application for certiorari. The accused has argued that his appeal isunder section 784(1), being from a decision refusing prerogative relief, and the Crown has not argued that the appeal does not comewithin

section 784. [57] The basis of the accused’s application, as described by the application judge, is: . . . that the search warrants are expressly directed to the search and seizure of legal correspondence of the [accused], which issolicitor-client privileged, and are in excess of the jurisdiction of the Provincial Court. No provision was made for the sealing of such documents, or otherwise, to comply with the decision of the Supreme Court of Canadadecision in the Queen, in Lavallee, Rackel & Heintz v. Canada, 2002 SCC 61 , [2002] 3 S.C.R. 209.

As a result, according tothe [accused], irreversible prejudice to him has accrued due to the compromise of solicitor-client privilege. Ongoing prejudice isoccurring to the [accused], due [to] the loss of the ability to access the documents seized. [58] The application judge found that: . . . The transactional legal correspondence sought by the warrants in this case is, at law, not subject to solicitor-client privilege.

And it is certainly not material known to be protected by solicitor-client privilege, which might affect the court’s jurisdiction to issue thewarrants. [59] Thus, the matter was argued and decided on the basis of whether the magistrate committed a jurisdictional error inissuing the search warrants. [60] The principles of solicitor-client privilege, which have evolved and increased in importance over time (see, for example,R v McClure, 2001 SCC 14 at paras 17-37, [2001] 1 SCR 445; and Pritchard v Ontario (Human Rights Commission), 2004 SCC 31,[2004] 1 SCR 809), were described by Arbour J for the majority in Lavallee, Rackel & Heintz v Canada (Attorney General); White,Ottenheimer & Baker v Canada (Attorney General); R v Fink, 2002 SCC 61, [2002] 3 SCR 209 as follows (at para 49): Solicitor-client privilege is a rule of evidence, an important civil and legal right and a principle of fundamental justice in Canadian law.

While the public has an interest in effective criminal investigation, it has no less an interest in maintaining the integrity of the solicitor-client relationship. Confidential communications to a lawyer represent an important exercise of the right to privacy, and they are centralto the administration of justice in an adversarial system. Unjustified, or even accidental infringements of the privilege erode the public’sconfidence in the fairness of the criminal justice system.

This is why all efforts must be made to protect such confidences. [61] The modern evolution of these principles was earlier confirmed by the Supreme Court of Canada in Descôteaux, which

dealt with the validity of a search warrant to search for and seize financial information provided by an applicant to a legal aid office inrelation to an investigation of a false pretences charge. Lamer J, writing for the Court, stated (at p 893): The fundamental right to communicate with one’s legal adviser in confidence has given rise to a rule of evidence and a substantiverule. Whether through the rule of evidence or the substantive rule, the client’s right to have his communications to his lawyer keptconfidential will have an effect when the search warrant provided for in s. 443 Cr.C. [now

section 487] is being issued and executed.

Thus the justice of the peace has no jurisdiction to order the seizure of documents that would not be admissible in evidence in courton the ground that they are privileged (the rule of evidence). [emphasis added] [62] Lamer J adopted the following finding by Southey J in Re Borden & Elliott and The Queen (1975), (ON CA), 13 OR (2d) 248 at 255 (at p 887): I find, accordingly, that the applicant is entitled to raise the solicitor-and-client privilege at this stage in the proceeding, as a groundfor quashing the search warrant for lack of jurisdiction on the part of the Justice. [63] Lamer J then said, as regards that finding (at p 887): I am of this view and would add, by way of clarification, that the justice of the peace should raise the question himself and, wherenecessary, find that he has no jurisdiction to authorize the search. [64] The basis of the accused’s application for prerogative relief in this case is that the justice of the peace erred in grantingthe search warrant authorizing the police to search for and seize legal correspondence that was protected by solicitor-client privilege andnot admissible in evidence and that this constituted an error in the exercise of her jurisdiction.

According to the jurisprudence, if a justiceof the peace does, in fact, err in authorizing a search warrant to search for and seize such documents, that is a jurisdictional error. [65] I would, therefore, find that the appeal raises an issue related to the jurisdiction of the justice of the peace.

As such, Iwould find that the accused is entitled to appeal the refusal of the application judge to grant his application for prerogative relief. [66] Following the hearing of the appeal, with the consent of the accused, the Crown provided the Court with the decision ofthe British Columbia Court of Appeal in Re Patrick et al and Attorney-General of Canada (1987), (BC CA), 35 CCC(3d) 551 (BC CA), leave to appeal to SCC ref’d, [1987] SCCA 161 (QL).

Hinkson JA, for the majority, quashed the appeal on the basisthat, while the accused was asking for a prerogative remedy, the application was really for Charter relief, with the result that the Courthad no jurisdiction to hear the appeal at that stage of the proceedings.

He also found that, even if the Court had jurisdiction to hear theappeal, he would have declined to do so on the basis that the matter would be better dealt with at trial to avoid the delays that accompanyappeals of interlocutory orders. (See also Zevallos.) [67] I am not sure on which basis the Crown is relying, but the accused has not had an opportunity to reply and neither ofthese issues was argued before us. I would, therefore, decline to rule on them.

To the extent that they are relevant, they can be raisedand fully argued on the hearing of the appeal. [68] The accused also argues that the Crown’s motion to quash the notice of appeal because the court lacks jurisdiction tohear an appeal of an interlocutory order should, itself, be dismissed because the order was a final order. This is based on the fact thatcharges had not been brought either at the time that he filed his notice of appeal or by the time that the appeal was perfected.

Given myfinding that the accused had the right to appeal this decision for the reasons set out, there is no need to address this argument. VI. DECISION [69] For these reasons, I would dismiss the Crown’s motion to quash the accused’s notice of appeal. [70] The Crown asked for an order extending the time to file its factum and appeal book. I would grant that order and givethe Crown 30 days from the date of this judgment to file its factum and appeal book. If the Crown requires further time, it should applyfor an extension, unless the parties are able to agree in that regard. JA

I agree: JA I agree: JA