R v Franc, 2015 SKCA 146

Court of Appeal for Saskatchewan Docket: CACR2639 Citation: R v Franc , 2015 SKCA 146 Date: 2015-12-21 Between: Her Majesty the Queen Appellant (Respondent) And David Franc Respondent (Applicant) Before: Richards C.J.S., Whitmore and Ryan-Froslie JJ.A. Disposition: Application dismissed Written reasons by: The Honourable Chief Justice Richards In concurrence: The Honourable Mr. Justice Whitmore The Honourable Madam Justice Ryan-Froslie On Appeal From: Provincial Court, J.C. of Prince Albert Heard: December 17, 2015 Counsel: Wade E. McBride for the Appellant Marcel Simonot, Q.C. for the Respondent Richards C.J.S.

I. Introduction [ 1 ] This is an application for an order allowing David Franc an opportunity to argue against the validity of an order granting the Crown an extension of time for serving its notice of appeal in this matter. II. Background [ 2 ] Mr. Franc was charged with trafficking cocaine. He was acquitted of that charge in the Provincial Court on June 4, 2014. The Crown appealed the acquittal by electronically filing a notice of appeal on July 2, 2015.

This was within 30 days of the date of the acquittal as required by Rule 8(2) of The Court of Appeal Criminal Appeal Rules (Saskatchewan) . [ 3 ] The Crown was unable to serve Mr. Franc with the notice of appeal within the 30 day period but he was served on July 7, 2015. The Crown then served Mr. Franc with an application to extend the time for service in accordance with s. 678(2) of the Criminal Code , RSC 1985, c C-46 [ Code ]. [ 4 ] On the return date of the application, Mr. Franc did not appear in Chambers to respond to the application.

An order extending the time for service of the notice of appeal was granted by the Chambers judge. The order provided that the time to serve and file the notice of appeal was extended to July 8, 2015. III. the application [ 5 ] On December 7, 2015, Mr. Franc filed a notice of motion returnable to a panel of the Court. He asked for the following relief:

a) An order pursuant to

section 20 subsection 3 of The Court of Appeal Act, 2000 granting the Respondent an opportunity to make argument against the Crown’s application to extend the time for service of the Notice of Appeal in these proceedings.

b) An order that all further steps by the Crown in these proceedings be halted until the determination of the within appeal.

c) Costs of this appeal. [ 6 ] Mr. Franc says that he did not understand the meaning of the Crown’s s. 678(2) application when it was served on him and that, therefore, he did not respond to it. IV. Analysis [ 7 ] Rights of appeal are wholly statutory and rights of appeal in the criminal context are specified in the Criminal Code .

[8] The Code does not create a right of appeal from an order granting an extension of time pursuant to s. 678(2). It follows thatthis Court has no jurisdiction to entertain an application of the sort brought by Mr. Franc. As the Crown points out in its brief, severalappellate courts have reached this conclusion. For example, in R v Butchko, 2004 SKCA 159, 257 Sask R 41, this Court held as follows: [12] Counsel could point to no provision in the Criminal Code providing for appeal from such an order.

But he did point to a decisionof the Manitoba Court of Appeal in which that Court reviewed an order extending the time for appeal granted by a judge on the authorityof section 678(2) of the Criminal Code: R. v. Henry (1989), (MB CA), 52 C.C.C. (3d) 470. On what basis the reviewin Henry was conducted is not evident from the reasons for judgment of the Court. Indeed, the question of whether there exists a right ofappeal to the court from an order of a judge granting an extension to appeal under section 678(2) does not appear to have arisen. [13] The question did arise in another case, namely in R. v.

O'Malley (1997), (BC CA), 119 C.C.C. (3d) 360(B.C.C.A.), although it arose in reverse, which is to say it arose not from an order granting an extension of time, as in Henry, but from anorder denying an extension. In O'Malley, the British Columbia Court of Appeal pointed to the absence in the Criminal Code of a right ofappeal from such orders, reviewed the authorities on the question, and held that the Court did not have jurisdiction to review an order ofa single judge denying an extension of time to appeal against conviction.

The corollary of this is that there is likewise no jurisdiction inthe Court to review an order of a single judge of the court granting an extension of time to appeal an acquittal. [14] As in O'Malley, we, too, are of the view that in the absence of a right of appeal to the Court from an order of a judge of the Courtextending the time for appeal under section 678(2), the Court is without jurisdiction to entertain a request to review such order.

See also: R v Harness, 2005 ABCA 245 at paras 18-20, 367 AR 259; R v O’Malley (1997) (BC CA), 119 CCC (3d)360 (BCCA) at paras 17-18. [9] In his oral argument, counsel for Mr. Franc attempted to work around these authorities by arguing that

section 7 of theCanadian Charter of Rights and Freedoms somehow trumps the Criminal Code so as to create a right of appeal in relation to ordersmade pursuant to s. 678(2). [10] I am not persuaded by this line of argument.

Section 7 of the Charter reads as follows: 7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance withthe principles of fundamental justice. [11] In order to establish a breach of s. 7, Mr. Franc must prove both a denial of “life, liberty and security of the person” andestablish that any such denial was not in accordance with “the principles of fundamental justice.” Assuming without deciding that thedenial of a right of appeal in the circumstances in issue here is a denial of “liberty” or of “security of the person,” Mr.

Franc would stillhave to establish that the denial of liberty or the security of the person was inconsistent with “principles of fundamental justice” in orderto succeed. [12] Principles of fundamental justice are legal principles that are vital or fundamental to our societal notion of justice and capableof being identified with precision and applied to situations in a manner that yields predictable results. See: Canadian Foundation forChildren, Youth & the Law v Canada (Attorney General), 2004 SCC 4 at para 8, [2004] 1 SCR 76. Mr.

Franc has not explained how thefailure to provide for a right of appeal for decisions made pursuant to s. 678(2) offends any such principle. At most he says that he wastreated unfairly in the Chambers proceeding and, as I understand it, that denying him an appeal would therefore also be unfair. However,I see no basis on which any of this can amount to something inconsistent with principles of fundamental justice.

Statutory limitations onrights of appeal are a familiar part of both the civil and criminal legal landscapes and the inability to appeal from a judicial decision doesnot ipso facto mean there has been a Charter violation. See: R v Meltzer, [1989] 1 SCR 1767. V. Conclusion [13] I conclude that this Court has no jurisdiction to entertain Mr. Franc’s application and that it must accordingly be dismissed. “Richards C.J.S.” Richards C.J.S.I concur. “Whitmore J.A.” Whitmore J.A.I concur. “Ryan-Froslie J.A.” Ryan-Froslie J.A.