R v Chu, 2017 SKCA 75

Court of Appeal for Saskatchewan Docket: CACR3000 Citation: R v Chu , 2017 SKCA 75 Date: 2017-09-08 Between: Christopher Pang Chu Applicant And Her Majesty the Queen Respondent Before: Jackson J.A. (in Chambers) Disposition: Application denied On Application From: QBC20/2013, Saskatoon Application Heard: August 22, 2017 Counsel: Eleanor Funk for the Appellant Wade McBride for the Respondent Jackson J.A. [ 1 ] This is an application to extend the time to file a notice of appeal from a decision made in the Court of Queen’s Bench. It comes to this Court in a somewhat unusual fashion.

The principal issue I must decide is whether the proposed appellant has a right of appeal to the Court of Appeal. [ 2 ] Christopher Pang Chu was charged with trafficking and conspiring to traffic in a controlled substance. He was first tried in the Court of Queen’s Bench and convicted in December of 2014: R v Chu , 2014 SKQB 414 . [ 3 ] On appeal from that decision, this Court found that the Crown’s late and nondisclosure during the first trial constituted a breach of Mr. Chu’s s. 7 Charter rights ( R v Chu , 2016 SKCA 156 , 344 CCC (3d) 51 [ Chu CA ]). In Mr.

Chu’s appellant factum on that occasion (CACR2618), he sought the following relief: “Pursuant to sections 686(1) (

a) and 686(2) (

b) of the Criminal Code , the Appellant asks this Honourable Court to allow the within appeal; quash the convictions; and order a new trial” (at para 113). In paragraph 73 of Chu CA , this Court stated the “remedy for the s. 7 Charter breach can only be a new trial”. The Court allowed the appeal from conviction and ordered a new trial. [ 4 ] The Crown is now proceeding with that new trial, which is scheduled to begin sometime this fall. On May 17, 2017, Mr. Chu applied to Gabrielson J., the new trial judge.

The application is styled as follows: IN THE COURT OF QUEEN’S BENCH OF SASKATCHEWAN JUDICIAL CENTRE OF SASKATOON NOTICE OF CHARTER APPLICATION R. v. CHRISTOPHER PANG CHU QBC No # 20/13 Occurrence # 38262-11 Information # 24112764 [ 5 ] The application is directed to Justice Canada (Prairie Region), to the Public Prosecution Service of Canada and to the Clerk of the Court of Queen’s Bench.

It lists the pending charges and seeks the following s. 24(1) relief: “‘such remedy as the court considers appropriate and just in the circumstances’; specifically, the Applicant seeks costs incurred as [a] direct result of the Crown’s breach of his s 7 rights and the resulting abuse of process”. [ 6 ] In support of this relief, the application continues: Statements of Constitutional Issues to Be Raised 1. Considering the s 7 breach and abuse of process as found by the Court of Appeal, the Applicant is entitled to a remedy pursuant to s 24(1) of the Charter .

The applicant seeks from this Honourable Court the appropriate and just remedy for the breaches already found [by] the Court of Appeal . The Applicant submits the appropriate and just remedy is an Order for costs. (Underline emphasis added) [ 7 ] After hearing submissions in relation to Mr. Chu’s application to him, Gabrielson J. held that this Court, being the court that found the Charter breach, should hear Mr. Chu’s new claim for costs, and, in any event, he should not hear the matter as he is the retrial judge.

In that regard, he wrote as follows: [6] Furthermore, in light of the fact that it was the Court of Appeal who decided that the failure to grant an adjournment of the trial was an abuse of process, it also seems logical that the remedy for the abuse of process should also be determined by the Court of Appeal. …

[9] I have therefore determined that the Court of Appeal is the appropriate court to consider whether the conduct of the Crown issufficiently serious in respect to the Crown’s late disclosure and warrants a remedy in costs. If the Court of Appeal should decide that thematter is to be heard in the Court of Queen’s Bench, I have also determined that as the retrial judge it would not be appropriate for me toopine as to whether the Crown’s conduct represents a marked departure from that expected of a prosecutor or whether the applicant isentitled to a remedy in costs.

Accordingly, if the Court of Appeal should determine that this application should be heard first in the Courtof Queen’s Bench it should be heard by a judge other than myself. (June 9, 2017, fiat) [8] Justice Gabrielson rendered this decision on June 9, 2017. Since that time, Mr. Chu has been seeking advice as to how to“appeal” or otherwise obtain the remedy that he seeks, which is the payment of the costs he says were thrown away as a result of theCharter breach that had occurred during the course of his first trial.

He has corresponded with the Registrar of this Court and theRegistrar of the Court of Queen’s Bench. He seeks a hearing on the merits as to whether he is entitled to the compensation he seeks. [9] To that end, Mr. Chu now applies in Court of Appeal Chambers for the following relief: (

a) An order pursuant to Rule 71 of The Court of Appeal Rules and s 9(6) of The Court of Appeal Act extending the time within which the Prospective Appellant may serve a notice of appeal from the fiat of the Honourable Mr. Justice Gabrielson issued on the 9th day of June,2017. (

b) An order pursuant to Rule 52 of The Court of Appeal Rules that the Prospective Respondent shall not have the costs of thisapplication. (Italic emphasis in original) [10] In support of his application, Mr. Chu filed an affidavit attesting to the following: 8. The amount I have spent on legal fees has created and continues to create a financial hardship for me. I presently do not earn enough topay my bills; I have no means of obtaining funds to retain counsel for the second trial.

I am depending on the Court to at least considermy application for costs in hopes of recovering the legal fees that I have paid as a result of the Charter breach. [11] In oral argument before me, counsel for Mr. Chu clarified that she is not seeking a rehearing in this Court. She accepts that, onthe hearing of Mr. Chu’s appeal from conviction, this Court was limited in the remedy it could grant. Rather, she asserts this Court’sdecision allowing the appeal and ordering a new trial did not exhaust the extent of Mr.

Chu’s request for a remedy under the Charter.She seeks costs for the past breach and she asserts that the Court of Queen’s Bench has the jurisdiction to grant such relief. [12] In that regard, Mr. Chu’s draft notice of appeal seeks the following relief: i. Pursuant to section 12(1)(

d) of The Court of Appeal Act, which allows this court to “make any decision that could have been madeby the court or tribunal appealed from”, that this court hear and determine the Appellant’s claim for s 24(1) relief; in the alternate ii. Pursuant to section 12(1)(

f) of The Court of Appeal Act, which allows this court to “make any additional decision that itconsiders fit”, that this court remit the matter to the Court of Queen’s Bench for a hearing and determination of the Appellant’s claim fors 24(1) relief. [13] For his part, Crown counsel opposes Mr. Chu’s application on the basis of this Court’s lack of jurisdiction. On behalf of theProsecution Service of Canada, he submits the only authority I have is to dismiss Mr. Chu’s application to extend the time for leave toappeal on the footing that no right of appeal exists.

In support of his argument, Crown counsel filed the following decisions: Pardy vNewfoundland and Labrador, 2014 NLCA 37, 315 CCC (3d) 217 [Pardy]; R v Kimmie, 2006 SKCA 87, 212 CCC (3d) 127 [Kimmie];and R v Hales, 2009 SKCA 91, 331 Sask R 102 [Hales]. [14] Crown counsel acknowledges that the majority opinion in Pardy stands for the proposition that if an application can becharacterized as predominantly civil in nature, a right of appeal will lie under The Court of Appeal Rules and The Court of Appeal Act,2000, SS 2000, c C-42.1 – notwithstanding the fact it was brought within the context of a prosecution.

In this case, however, he assertsthat Mr. Chu’s application cannot be characterized as a civil matter. Rather, he submits that Mr. Chu is attempting to appeal aninterlocutory criminal order, such that no right of appeal lies to the Court of Appeal at this time. [15] The facts in Pardy may be briefly stated. Mr. Pardy was charged with first degree murder. Unable to obtain a privatepractitioner at the legal aid tariff rates, he applied to the Trial Division for an order providing him with counsel of his choice “from theprivate bar to be paid for by the Attorney General at a rate to be negotiated” (at para 6).

The applications judge held that Mr. Pardy’s fairtrial rights were not in jeopardy and denied the application. [16] On appeal to the Court of Appeal of Newfoundland and Labrador, the majority of the Court determined that it had thejurisdiction to entertain the appeal and allowed the appeal. Chief Justice Green, writing for the majority in Pardy, reiterated the rule thats. 674 of the Criminal Code, RSC 1985, c C-46, precludes interlocutory appeals in criminal matters:[1] [11] The Code does not provide for interlocutory appeals.

The Supreme Court of Canada has been quite explicit, in various othercontexts, that interlocutory appeals in criminal matters are not authorized by the Code and that there is no inherent appeal jurisdiction incriminal cases: Mills v. The Queen, (SCC), [1986] 1 S.C.R. 863; R. v. Meltzer, (SCC), [1989] 1 S.C.R.1764. He acknowledged that the issue before the Court in Pardy was “whether a purported appeal of a decision denying counsel is ‘an appeal

in proceedings in respect of indictable offences’ within the meaning of

section 674” (at para 12). He also acknowledged such decisions asR v Dunkers, 2010 BCCA 605, 298 BCAC 47, and Hales, but he distinguished them on the basis that they dealt with appeals fromdecisions of preliminary inquiry judges denying counsel at the stage of the preliminary inquiry, not at the trial itself. [17] Relying in part on Kimmie, the majority in Pardy concluded that Mr.

Pardy’s claim was not brought against the AttorneyGeneral as the prosecutor of the criminal matter at hand, but rather was brought as a civil, administrative or constitutional proceedingadjacent to the criminal matter at hand, and therefore giving rise to a right of appeal as a civil matter pursuant to s. 5 of the JudicatureAct, RSNL 1990, c J-4.[2] [18] Expanding on this point, Chief Justice Green wrote the following: [38] Because the matter at issue engages the Attorney General in his capacity relating to the administration of justice generally and theexpenditure of public funds ‒ matters which can be characterized as engaging civil, administrative or constitutional law but not,substantively, criminal law – there is no impediment to entertaining and dealing with an appeal at the present time.

The matter is not “anappeal in proceedings in respect of indictable offences” within

section 670 but is, instead, caught by

section 5 of the Judicature Act. As amatter of policy, this is the appropriate position to take, because of the importance of fully resolving the entitlement to state-fundedcounsel before the trial starts, rather than forcing an accused into a Hobson’s choice of either accepting a counsel with whom he claimshe cannot form a proper solicitor–client relationship or proceeding to trial without counsel with all the attendant risks that entails.Dealing with the issue now makes eminent practical sense. (Emphasis added) [19] In the matter before me, counsel for Mr.

Chu approaches the question of jurisdiction in the same way as the majority did inPardy in order to ground her application to extend the time for leave to appeal the decision of Gabrielson J. to a panel of this Court. Thus,assuming the authority of the majority decision in Pardy, the first issue before me, in order to give effect to this argument, is whether theapplication before Gabrielson J. is in the nature of a civil or a criminal proceeding. [20] Having considered the matter, I have concluded that it is not appropriate to characterize what transpired before Gabrielson J.as being civil in nature.

I say this for the following reasons. [21] The application is criminal in both form and substance. The application seeking costs is grounded in a criminal process. It wasstyled as an application in the context of criminal proceedings. In his capacity as the trial judge in the pending criminal trial, GabrielsonJ. held a number of case management conferences with Mr. Chu, and, most recently, with Ms. Funk on Mr. Chu’s behalf. In the contextof a pre-trial case management session, Ms. Funk alerted Gabrielson J. that she intended to make a Charter application specifically tohim.

It is only in this Court that she invokes The Court of Appeal Act and The Court of Appeal Rules (Civil) in order to circumvent s. 674of the Criminal Code. [22] In any event, I note that even if the decision of Gabrielson J. could be characterized as a final civil order, I would have to passon the merits of Ms. Funk’s application to extend the time to appeal following the applicable civil rules and case authority.

When aprospective appellant applies to extend the time to appeal a final order under s. 9(6) of The Court of Appeal Act, the Chambers judge isentitled to consider the issues of delay, prejudice and merit: Joynt v Topp (1962), (SK CA), 36 DLR (2d) 591 (SaskCA) [Joynt]; Royal Bank of Canada v. G.M. Homes Inc. (1982), (SK CA), 25 Sask R 6 (CA); Bank of Nova Scotia vSaskatoon Salvage Company

(1954) Ltd. (1984), (SK CA), 29 Sask R 285 (CA); and Treeland Motor Inn Ltd. vWestern Assurance Company (1984), (SK CA), 30 Sask R 154 (CA). [23] Speaking only to the test for assessing the merit of a proposed appeal, an applicant for leave must persuade a court that it is atleast arguable that the “judgment sought to be appealed from is wrong” (Joynt at 594). While the interests of justice and equity arealways predominant in such applications, I am not persuaded that this Court can grant the remedy that Mr. Chu seeks in his draft noticeof appeal. [24] According to Mr. Chu’s draft notice of appeal, he asks this Court to do one of two things: (

a) take on the issue as a matter offirst instance and grant him the remedy he seeks; or (

b) remit the matter to Gabrielson J., directing him to hear and decide the matter (orto direct the matter to another judge of the Court of Queen’s Bench). The first of these two remedies is completely without foundation. Inthe circumstances that now exist here, this Court would not assume the jurisdiction to grant a Charter remedy that had not been firstconsidered by a trial court. [25] If this is a civil matter, the only ground of appeal with any amount of credibility would be to remit the matter to another judgeof the Court of Queen’s Bench for a hearing and determination of Mr.

Chu’s claim – as a new matter – but the only proceeding beforethe Court of Queen’s Bench is an application in the context of the criminal trial that is scheduled to be heard shortly. Given the context inwhich the application was placed before Gabrielson J., i.e., a Charter application within the context of the previous criminal trial, thisground of appeal is less than arguable as well. Thus, converting these proceedings into civil proceedings, at this stage, couldinadvertently deprive Mr. Chu of a later right that he may have. [26] Finding a right of appeal in order to ground my jurisdiction to hear Mr.

Chu’s application to extend the time to appeal only todismiss that application would seem to be an inappropriate exercise of my discretion. This is particularly so when the application beforeGabrielson J. was clearly, in my view, an application for an interlocutory order in the context of a criminal trial. [27] Thus, I would dismiss the application to extend the time to appeal on the basis that the Criminal Code does not permit a rightof appeal to this Court.

“Jackson J.A.” Jackson J.A.