Ochapowace Indian Band v. Saskatchewan (Minister of Justice), (2007) 304 Sask.R. 228 (CA)

• Judge: Lane, Richards and Hunter, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: March 20, 2007
• Jurisdiction: Saskatchewan
• Citations: (2007), 304 Sask.R. 228 (CA);2007 SKCA 88

Ochapowace Indian Band v. Sask. (2007), 304 Sask.R. 228 (CA);

      413 W.A.C. 228

MLB headnote and full text

Temp. Cite: [2007] Sask.R. TBEd. SE.003

Chief Denton George in his personal capacity and on behalf of the Ochapowace Indian Band and the Ochapowace Indian Band (appellants) v. Her Majesty the Queen as represented by the Minister of Justice for Saskatchewan (respondent) and Her Majesty the Queen as represented by the Attorney General for Canada (respondent)

(No. 938; 2007 SKCA 88)

Indexed As: Ochapowace Indian Band v. Saskatchewan (Minister of Justice)

Saskatchewan Court of Appeal

Lane, Richards and Hunter, JJ.A.

August 22, 2007.

Summary:

The applicants were convicted of failing to file GST returns contrary to the Excise Tax Act. They appealed. The applicants sought an order directing the transcript services to transcribe the entire proceedings including oral tradition evidence in the Cree and Saulteaux languages and an order requiring the Attorney General of Canada to contribute to the applicants' legal costs in any event.

The Saskatchewan Court of Queen's Bench, in a decision reported at 258 Sask.R. 150, dismissed the applications. The applicants appealed.

The Saskatchewan Court of Appeal dismissed the appeal.

Criminal Law - Topic 7462

Summary conviction proceedings - Appeals - General - Jurisdiction - The applicants were convicted of failing to file GST returns contrary to the Excise Tax Act - They appealed - The applicants sought an order directing the transcript services to transcribe the entire proceedings including oral tradition evidence in the Cree and Saulteaux languages and an order requiring the Attorney General of Canada to contribute to the applicants' legal costs in any event - The trial judge dismissed the applications - The applicants appealed - The Saskatchewan Court of Appeal dismissed the appeal - Section 839(1)(a) of the Criminal Code was the operative provision for the purposes of deciding the case - Section 839(1)(a) did not contemplate the appeal of decisions of an interlocutory character made in connection with an appeal otherwise properly before an "appeal court" - An appeal lay to the Court of Appeal only after the Court of Queen's Bench had disposed of the substance of the appeal before it - The issues concerning costs and the transcript raised by the applicants were self-evidently interlocutory in nature - Neither of them was in any way dispositive of the appeal before the Court of Queen's Bench and they were not appealed in connection with a decision which was dispositive of that appeal - As a result, they did not fall within the scope of s. 839(1)(a) - See paragraphs 13 to 28.

Criminal Law - Topic 7463

Summary conviction proceedings - Appeals - General - Scope of appeal - The applicants were convicted of failing to file GST returns contrary to the Excise Tax Act - They appealed - The applicants sought an order directing the transcript services to transcribe the entire proceedings including oral tradition evidence in the Cree and Saulteaux languages and an order requiring the Attorney General of Canada to contribute to the applicants' legal costs in any event - The trial judge dismissed the applications - The applicants appealed under ss. 813 and 822 of the Criminal Code - The Saskatchewan Court of Appeal held that the questions with respect to the transcripts and costs arose for the first time before the trial judge - Both the production of the trial transcripts and the payment of legal fees for the appeal were, by definition, not matters which were raised in the Provincial Court - The issue in this court, therefore, did not concern the rights of appeal under s. 813 or s. 830 - It concerned only the scope of the right to appeal from the Court of Queen's Bench to the Court of Appeal - It followed that the provincial Crown and the applicants erred in framing their arguments around ss. 813 and 830 - See paragraphs 8 to 12.

Criminal Law - Topic 7473.2

Summary conviction proceedings - Appeals - General - Appeal from interlocutory decision - [See Criminal Law - Topic 7462 ].

Cases Noticed:

Kourtessis et al. v. Minister of National Revenue et al., [1993] 2 S.C.R. 53; 153 N.R. 1; 27 B.C.A.C. 81; 45 W.A.C. 81, refd to. [para. 8].

R. v. Hudson (E.B.) (2007), 299 Sask.R. 133; 2007 SKCA 82, refd to. [para. 8].

R. v. Kimmie (N.) (2006), 285 Sask.R. 186; 378 W.A.C. 186; 212 C.C.C.(3d) 127; 2006 SKCA 87, dist. [para. 13].

R. v. Laviolette (R.) (2005), 260 Sask.R. 121; 2005 SKQB 61, refd to. [para. 13].

R. v. Carpenter (L.) (2005), 272 Sask.R. 31; 2005 SKQB 432, refd to. [para. 13].

R. v. Lemieux (A.) (2006), 285 Sask.R. 311; 378 W.A.C. 311; 2006 SKCA 119, refd to. [para. 13].

R. v. Bevis (K.C.) (2000), 188 N.S.R.(2d) 163; 587 A.P.R. 163; 150 C.C.C.(3d) 125; 2000 NSCA 125, refd to. [para. 15].

R. v. Dennis, [1960] S.C.R. 286, refd to. [para. 19].

R. v. Trussler (1960), 130 C.C.C. 132 (Alta. C.A.), refd to. [para. 20].

R. v. Farmers & Merchants Trust Co., [1964] 2 C.C.C. 46 (Sask. C.A.), refd to. [para. 21].

R. v. Canadian Pacific Ltd., [1977] 1 W.W.R. 203; 1 A.R. 177; 32 C.C.C.(2d) 14, refd to. [para. 22].

R. v. Osgoode Sand & Gravel Ltd. (1978), 41 C.C.C.(2d) 503 (Ont. Div. Ct.), refd to. [para. 23].

R. v. Belaroui (2004), 186 C.C.C.(3d) 386 (Que. C.A.), refd to. [para. 24].

R. v. Alfred, [1991] B.C.J. No. 100 (C.A.), refd to. [para. 25].

R. v. Schoor (E.R.) (1993), 92 Man.R.(2d) 81; 61 W.A.C. 81 (Man. C.A.), refd to. [para. 26].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 839 [para. 14].

Counsel:

Mervin C. Phillips and Merrilee Rasmussen, Q.C., for the appellants;

R. James Fyfe, for the Minister of Justice for Saskatchewan;

Horst H. Dahlem, Q.C., for the Attorney General, for Canada.

This appeal was heard on March 20, 2007, by Lane, Richards and Hunter, JJ.A., of the Saskatchewan Court of Appeal. Richards, J.A., delivered the following judgment of the Court of Appeal on August 22, 2007.