Duarte et al. v. British Columbia (Attorney General) et al., 2012 BCCA 6

• Judge: Hall, J.A.
• Court: Court of Appeal (British Columbia)
• Case Date: December 06, 2011
• Jurisdiction: British Columbia
• Citations: 2012 BCCA 6;(2012), 314 B.C.A.C. 306 (CA)

Duarte v. B.C. (A.G.) (2012), 314 B.C.A.C. 306 (CA);

    534 W.A.C. 306

MLB headnote and full text

Temp. Cite: [2012] B.C.A.C. TBEd. JA.026

Captain E.G. da Costa Duarte and Sailmaster Glenn Lusk (proposed appellants) v. Attorney General of British Columbia, Prothonotary Roger R. Lafreniere (Federal Court of Canada), Campbell River Harbour Authority (CRHA), The Board of Directors of the CRHA, Coast Bailiff & Collections, Shelley Chapelski and Phyllis Titus (respondents)

(CA039471; 2012 BCCA 6)

Indexed As: Duarte et al. v. British Columbia (Attorney General) et al.

British Columbia Court of Appeal

Hall, J.A.

January 11, 2012.

Summary:

Duarte and Lusk commenced a private information or prosecution alleging unlawful conduct by a number of individuals associated with the Campbell River Harbour Authority. Under s. 507.1 of the Criminal Code, a hearing was required to be scheduled before a Provincial Court judge to consider such an information. After perceived unwarranted delay by Provincial Court officials in scheduling the requisite hearing, Duarte and Lusk sought to invoke the assistance of the Supreme Court. They sought, inter alia, orders in the nature of certiorari or mandamus requiring the Supreme Court to perform the functions mentioned in s. 507.1.

The British Columbia Supreme Court declined jurisdiction until there had been an adjudication under s. 507.1. Duarte and Lusk sought to appeal.

The British Columbia Court of Appeal, per Hall, J.A., declined to grant leave to appeal to such an interlocutory ruling.

Courts - Topic 8683

Provincial courts - British Columbia - Court of Appeal - Jurisdiction - Criminal appeals - Duarte and Lusk commenced a private information or prosecution alleging unlawful conduct by a number of individuals associated with the Campbell River Harbour Authority - Under s. 507.1 of the Criminal Code, a hearing was required to be scheduled before a Provincial Court judge to consider such an information - After perceived unwarranted delay by Provincial Court officials in scheduling the requisite hearing, Duarte and Lusk sought to invoke the assistance of the Supreme Court - They sought, inter alia, orders in the nature of certiorari or mandamus requiring the Supreme Court to perform the functions mentioned in s. 507.1 - Romilly, J., declined jurisdiction until there had been an adjudication under s. 507.1 - Duarte and Lusk sought to appeal - The British Columbia Court of Appeal, per Hall, J.A., held that the order sought to be appealed was an interlocutory order made by a Supreme Court judge - Therefore, leave to appeal was required - The court declined to grant leave to appeal - The court stated that the submission by the Attorney General that the Court of Appeal, a court of statutory jurisdiction, was without jurisdiction to hear the proposed appeal was "probably correct" - Appeals of interlocutory rulings in criminal proceedings were not normally available - Further, the court could not envision that a division of the court could or would grant any relief on the proposed appeal from this interlocutory decision.

Criminal Law - Topic 4912

Appeals - Indictable offences - Procedure - Application for leave to appeal - Interlocutory orders - [See Courts - Topic 8683 ].

Criminal Law - Topic 7602

Summary conviction proceedings - Appeal to a court of appeal - Requirement of leave - [See Courts - Topic 8683 ].

Counsel:

The proposed appellants appeared via telephone;

P. Juk, Q.C., for the respondent Attorney General;

R. McLarty, for the respondent R. Lafreniere appeared via telephone.

This application for leave to appeal was heard in Chambers at Victoria, B.C., on December 6, 2011, before Hall, J.A., of the British Columbia Court of Appeal, who released the following reasons for judgment on January 11, 2012.