Docket: CACR2361 Curtis Sears Appellant - v. -, 2014 SKCA 72

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2014 SKCA 72 Date: 2014-06-18 Between: Docket: CACR2361 Curtis Sears Appellant - and - Her Majesty the Queen Respondent Coram: Jackson, Whitmore and Ryan-Froslie JJ.A. Counsel: Curtis Sears, appearing on his own behalf Wade McBride, for the respondent Appeal: From: Q.B.G. No. 1266 of 2013, J.C. of Saskatoon Heard: June 18, 2014 Disposition: Dismissed (orally)

Written Reasons: June 26, 2014 By: The Honourable Madam Justice Ryan-Froslie In Concurrence: The Honourable Madam Justice Jackson The Honourable Mr. Justice Whitmore Ryan-Froslie J.A. [1] The appellant, Curtis Sears, was charged in two separate indictments with multiple drug offences including possession ofcannabis marihuana for the purposes of trafficking and producing cannabis marihuana, contrary to ss. 5(2) and 7(1) respectively of theControlled Drugs and Substances Act, S.C. 1996, c. 19. Prior to being committed to stand trial, Mr.

Sears applied to the Court ofQueen’s Bench, pursuant to s. 601 of the Criminal Code, to quash those counts in his indictments on the basis they disclose no offencesknown to law. [2] Mr. Sears did not raise or argue any constitutional issues in his application. His position was simply that the charges were anullity because some courts (i.e. the Ontario Court of Appeal in R. v. Parker (2000), (ON CA), 188 D.L.R. (4th) 385and R. v. J.P. (2003), (ON CA), 231 D.L.R. (4th) 179, and the Alberta Court of Appeal in R. v.

Krieger, 2003 ABCA85, 225 D.L.R. (4th) 183) have held provisions of the act violated the Charter of Rights and Freedoms in that there was noconstitutionally acceptable medical exemption for individuals using, producing and/or selling marihuana for medical purposes. Mr.Sears argued that Parliament did not re-enact the affected provisions and, accordingly, pursuant to s. 2(2) of the

Interpretation Act,R.S.C. 1985, c. I-21, they were not in effect when he was charged with the offences in issue. Mr. Sears also argued that portions of theRegulations the federal government created to remedy the constitutional deficiencies did not alleviate the problems. Thus, Mr. Searssubmitted the whole regulatory scheme is rendered constitutionally inadequate and of no effect. [3] Mr. Sears’s application was heard by Chief Justice Popescul of the Court of Queen’s Bench. He dismissed the applicationholding that the relevant provisions of the Controlled Drugs and Substances Act were in effect when Mr.

Sears was charged. Mr. Searsappeals that decision to this Court. On the date scheduled to hear the appeal, this Court rendered an oral decision indicating that it couldnot entertain Mr. Sears’s appeal because it was premature. What follows are our written reasons. [4] The statutory authority for appeals to this Court by an accused with respect to indictable offences is found in s. 675 of theCriminal Code (from conviction after trial) and s. 784 of the Criminal Code with respect to prerogative matters involving mandamus,certiorari and prohibition. Mr.

Sears does not claim prerogative relief pursuant to s. 784, nor does he take the position the orderappealed from was a nullity as was the case in R. v. Sterling, (SK CA), [1993] 8 W.W.R. 623 (Sask. C.A.). His appealis pursuant to s. 675 of the Criminal Code. For this Court to have jurisdiction under that section, there must be a conviction by a trialcourt. In Mr. Sears’s case, that has not yet occurred. [5] In R. v. Mills, (SCC), [1986] 1 S.C.R. 863 (QL), the Supreme Court of Canada stated, at para. 272 “…that thereshould be no interlocutory appeals in criminal matters…”.

The policy reasons for this are to prevent fragmentation and bifurcation ofappeals, to prevent delay in proceedings and to prevent injustice by the predetermination of issues that should be left to the trial judge. [6] There is case authority that a refusal to quash an indictment pursuant to s. 601 of the Criminal Code is an interlocutory order(see: R. v. Mills, supra at para. 269; R. v. Walsh, (ON SC), [1969] 1 C.C.C. 86 (Ont. Sup. Ct.) affirmed [1969] 1 O.R.142n (C.A.); R. v. Jarman (1972), (ON CA), 10 C.C.C. (2d) 426 (Ont. C.A.); and R. v.

Fraser Papers (Canada) Inc.(2006), (NB CA), 301 N.B.R. (2d) 95 (N.B.C.A.). This principle is also supported by the fact that, in s. 676(1)(

b) ofthe Criminal Code, Parliament specifically granted the Crown a right of appeal if an indictment is quashed. No corresponding right isgranted to an accused as the proceedings will continue if the indictment is not quashed. [7] As this Court generally has no jurisdiction to hear appeals from interlocutory orders in criminal matters, Mr. Sears’s appeal ispremature and cannot be heard at this time. It must await the outcome of his trial.