R. v. Douglas (D.J.), (2016) 330 Man.R.(2d) 274 (CA)

• Judge: Beard, Cameron and leMaistre, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: February 24, 2016
• Jurisdiction: Manitoba
• Citations: (2016), 330 Man.R.(2d) 274 (CA);2016 MBCA 81

R. v. Douglas (D.J.) (2016), 330 Man.R.(2d) 274 (CA);

      675 W.A.C. 274

MLB headnote and full text

Temp. Cite: [2016] Man.R.(2d) TBEd. AU.017

Her Majesty The Queen (respondent) v. David Joseph Douglas (accused/appellant)

(AR 15-30-08456; 2016 MBCA 81)

Indexed As: R. v. Douglas (D.J.)

Manitoba Court of Appeal

Beard, Cameron and leMaistre, JJ.A.

August 18, 2016.

Summary:

The Crown filed a motion for an order quashing the accused's notice of appeal related to the validity of two search warrants issued pursuant to s. 487 of the Criminal Code. The Crown argued that this was an appeal of an interlocutory order and the Court of Appeal had no jurisdiction to hear a defence appeal from an interlocutory order prior to a conviction after trial. The Crown relied on ss. 674 and 675(1) of the Code. The accused argued that he was appealing the dismissal of his motion for relief by way of certiorari and to quash two search warrants. He argued that the court had jurisdiction to hear his appeal prior to a conviction after trial, relying on ss. 784(1) and 784(2) of the Code.

The Manitoba Court of Appeal dismissed the Crown's motion.

Courts - Topic 2106

Jurisdiction - Appellate jurisdiction - Court of Appeal - Criminal appeals - [See both Criminal Law - Topic 7182 ].

Criminal Law - Topic 2966

Jurisdiction - Appeals - Interlocutory orders - Bars - [See first Criminal Law - Topic 7182 ].

Criminal Law - Topic 4825

Appeals - Indictable offences - Right of appeal - From an interlocutory decision - [See both Criminal Law - Topic 7182 ].

Criminal Law - Topic 7182

Extraordinary remedies - Appeal respecting prerogative writs - Right of appeal - Section 784(1) of the Criminal Code provided that "An appeal lies to the court of appeal from a decision granting or refusing the relief sought in proceedings by way of mandamus, certiorari or prohibition." - Section 748(2) provided that "Except as provided in this section, Part XXI [regarding Appeals - Indictable Offences] applies, with such modifications as the circumstances require, to appeals under this section." - Sections 674 and 675 of the Code, contained in Part XXI, restricted an accused's right of appeal to final orders only - The Manitoba Court of Appeal rejected the Crown's argument that the effect of s. 744(2) was to limit an accused's right to appeal an interlocutory ruling under s. 784(1) to appeals brought following conviction - The court stated that "an accused's right to appeal pursuant to section 784(1) of the Criminal Code from a decision granting or refusing prerogative relief is not limited by sections 674 and 675 to appeals following conviction, but applies equally to appeals of interlocutory orders." - See paragraphs 18 to 54.

Criminal Law - Topic 7182

Extraordinary remedies - Appeal respecting prerogative writs - Right of appeal - The accused appealed the dismissal of his motion for relief by way of certiorari and to quash two search warrants - Section 784(1) of the Criminal Code provided that "An appeal lies to the court of appeal from a decision granting or refusing the relief sought in proceedings by way of mandamus, certiorari or prohibition." - The Manitoba Court of Appeal stated that "The basis of the accused's application for prerogative relief in this case is that the justice of the peace erred in granting the search warrant authorizing the police to search for and seize legal correspondence that was protected by solicitor-client privilege and not admissible in evidence and that this constituted an error in the exercise of her jurisdiction. According to the jurisprudence, if a justice of the peace does, in fact, err in authorizing a search warrant to search for and seize such documents, that is a jurisdictional error. I would, therefore, find that the appeal raises an issue related to the jurisdiction of the justice of the peace. As such, I would find that the accused is entitled to appeal the refusal of the application judge to grant his application for prerogative relief." - See paragraphs 55 to 68.

Counsel:

R.I. Histed, for the appellant;

C.R. Savage, for the respondent.

This motion was heard on February 24, 2016, by Beard, Cameron and leMaistre, JJ.A., of the Manitoba Court of Appeal. Beard, J.A., delivered the following reasons for judgment for the court on August 18, 2016.