R v Bouvier, 2018 SKCA 87

Court of Appeal for Saskatchewan Docket: CACR3173 Citation: R v Bouvier , 2018 SKCA 87 Date: 2018-11-06 Between: Her Majesty the Queen Applicant/Respondent And Allan Gordon Bouvier Respondent/Appellant Before: Richards C.J.S. (in Chambers) Disposition: Application dismissed Written reasons by: The Honourable Chief Justice Richards On Application From: Provincial Court, Beauval Application Heard: October 31, 2018 Counsel: W. Dean Sinclair, Q.C. for the Applicant Ronald P. Piché for the Respondent Richards C.J.S. I. Introduction [ 1 ] This is an application pursuant to s. 680 of the Criminal Code .

The Crown seeks a direction from me, as Chief Justice, that the Court review a decision of a judge of this Court to the effect that the judge had the jurisdiction to entertain an application by Allan Bouvier for the stay of a driving prohibition pending the resolution of his appeal. As explained below, the Crown’s application must be dismissed. II. Background [ 2 ] Mr. Bouvier was charged with impaired driving. He pled guilty to the offence and applied for a curative discharge pursuant to s. 255(5) of the Code .

His application was dismissed and the trial judge imposed a sentence of ten months of imprisonment and a three-year driving prohibition as per s. 259 of the Code . [ 3 ] Mr. Bouvier filed a notice of appeal wherein he appealed against his “conviction” and asked for an order “setting aside the conviction, and granting a curative discharge”. [ 4 ] Mr. Bouvier then brought an application before a judge in Chambers. He sought two kinds of relief. First, he requested interim release pursuant to s. 679 of the Code .

Second, he asked for a stay of his driving prohibition pursuant to s. 261(1) of the Code pending the disposition of his appeal. Section 261(1) reads as follows: 261.

(1) Subject to subsection (1.1), if an appeal is taken against a conviction or discharge under

section 730 for an offence committed under any of sections 220 , 221 , 236 , 249 to 255 and 259 , a judge of the court being appealed to may direct that any prohibition order under

section 259 arising out of the conviction or discharge shall , on any conditions that the judge or court imposes, be stayed pending the final disposition of the appeal or until otherwise ordered by that court. (Emphasis added) [ 5 ] At the Chambers hearing, the Crown argued Mr. Bouvier’s appeal was an appeal against sentence, not conviction. As a result, it contended the Chambers judge had no jurisdiction to stay the driving prohibition.

The Chambers judge rejected this argument ( R v Bouvier , 2018 SKCA 79 ) and went on to hold that, on receipt of the trial transcripts, he would make decisions about the relief requested by Mr. Bouvier. [ 6 ] This led the Crown to apply to me, as Chief Justice, for an order under s. 680 of the Code directing that the decision of the Chambers judge be reviewed by the Court.

Section 680 is set out below: 680.

(1) A decision made by a judge under

section 522 or subsection 524(4) or (5) or a decision made by a judge of the court of appeal under

section 261 or 679 may, on the direction of the chief justice or acting chief justice of the court of appeal, be reviewed by that court and that court may, if it does not confirm the decision, (

a) vary the decision; or (

b) substitute such other decision as, in its opinion, should have been made.

(2) On consent of the parties, the powers of the court of appeal under subsection (1) may be exercised by a judge of that court.

(3) A decision as varied or substituted under this

section shall have effect and may be enforced in all respects as though it were the decision originally made.

[7] The Crown submits the Chambers judge erred in holding that he had jurisdiction to entertain Mr. Bouvier’s applicationpursuant to s. 261 of the Code. It contends s. 261 is not engaged when an appellant takes issue with a trial court’s refusal to grant adischarge but does not appeal the finding of guilt underpinning the discharge issue. In the Crown’s view, the Chambers judge erred in (a)his reading of the notice of appeal, (

b) his

interpretation of R v Hunt, (SCC), [1979] 2 SCR 73, and (

c) his appreciationof s. 730(3) of the Code and its relevance to the jurisdictional question before him. III. Analysis [8] R v Oland, 2017 SCC 17, [2017] 1 SCR 250, instructs that, in considering an application under s. 680, I should “considerdirecting a review where it is arguable that the judge committed material errors of fact or law in arriving at the impugned decision, orthat the impugned decision was clearly unwarranted in the circumstances”. The Crown suggests I should proceed on this footing. [9] However, in my view, the situation here is not quite that straightforward.

I raised with counsel the question of whether I hadjurisdiction to entertain the Crown’s application, or to grant the relief it seeks, given that the Chambers judge has done no more to thispoint than decide he can deal with Mr. Bouvier’s application for a stay. Both counsel take the position that I have such jurisdiction. Irespectfully disagree. [10] Pursuant to s. 680, I may direct the review of a “decision made … under

section 261” by the Chambers judge. The term“decision” is not defined in the Code but, seen and understood in context, it rather-evidently refers to the conclusion of the judge on thematter he was empowered to decide under s. 261, i.e., his conclusion about whether to stay Mr. Bouvier’s driving prohibition. But, asindicated, the Chambers judge has not yet made any such decision.

He has determined only that he has the jurisdiction to order a stay. [11] The Crown expresses concern that, unless the Chambers judge’s preliminary ruling on jurisdiction is subject to a second lookat this point in the proceedings, it might escape review altogether. In other words, the Crown is concerned that, if Mr. Bouvier’s s. 261application is denied on the merits by the Chambers judge, it will have no basis for bringing the jurisdictional issue before the Court andthe decision of the Chambers judge on that point will stand as a precedent. [12] I am not persuaded by this concern.

The sort of situation described by the Crown is not in any way unusual. Points of lawfrequently become submerged in proceedings so as to put them beyond the reach of appellate review. By way of just one example,assume a trial judge makes a significant error of law in refusing to admit a piece of evidence tendered by the Crown. If the Crownnonetheless secures a conviction, the evidentiary decision will stand and will not be subject to review at the initiative of the Crown.

Thisis because, as a general proposition, appeals must be taken from the bottom-line results of proceedings, not from the reasons for gettingto that bottom line. See, for example: Sorotski v CNH Global N.V., 2006 SKCA 77, 285 Sask R 125. [13] The Crown’s position sits very uncomfortably with the policy notion that criminal proceedings should not be fragmentedunnecessarily. See: R v DeSousa, (SCC), [1992] 2 SCR 944 at 954. Such fragmentation risks causing delay and ofteninvolves the inefficient use of judicial resources. See: R v Awashish, 2018 SCC 45 at para 10.

These problems of delay and inefficiencyare readily apparent here. If I were to direct a review of the Chambers judge’s decision, Mr. Bouvier’s driving prohibition would remainin place until the Court both heard and decided the Crown’s appeal on the jurisdictional issue. If the Crown prevailed on thejurisdictional point, that would put an end to Mr. Bouvier’s effort to have the prohibition lifted. But, if the Crown was not able toconvince the Court that the Chambers judge had erred on the jurisdictional question, then the Chambers judge would have to deal withthe merits of Mr.

Bouvier’s application to lift the stay. Then, after the Chambers judge’s decision on the merits, either the Crown orMr. Bouvier could come back to me, as Chief Justice, under s. 680. The result might be a second trip to the Court, this time on thesubstantive merits of the Chambers judge’s decision to stay, or not to stay as the case might be, the prohibition. Accordingly, it wouldobviously be more efficient and expeditious if the Chambers judge made his decision on the substance of Mr. Bouvier’s application andthen, if Mr. Bouvier were to be successful, an application could be made by the Crown under s. 680. IV.

Conclusion [14] I conclude, for the reasons provided above, that the Crown’s application must be dismissed. This does not prejudice theCrown’s right to bring another s. 680 application, should it so desire, after the Chambers judge has made his decision pursuant to s. 261. “Richards C.J.S.” Richards C.J.S.