R. v. Fenrich, (1985) 42 Sask.R. 117 (QB)

• Judge: Armstrong, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: August 27, 1985
• Jurisdiction: Saskatchewan
• Citations: (1985), 42 Sask.R. 117 (QB);1985 CanLII 2814 (SK QB);1985 CanLII 2814 (FCA);[1985] 6 WWR 269;[1985] SJ No 634 (QL);42 Sask R 117

R. v. Fenrich (1985), 42 Sask.R. 117 (QB)

MLB headnote and full text

R. v. Fenrich

(Q.B. Cr. No. 15)

Indexed As: R. v. Fenrich

Saskatchewan Court of Queen's Bench

Judicial Centre of Battleford

Armstrong, J.

August 27, 1985.

Summary:

The accused was charged with an alcohol related driving offence (Criminal Code, s. 236).

The Saskatchewan Provincial Court dismissed the charge. The Crown served the accused with its notice of appeal a month after the time for service expired. The Crown applied under s. 750(2) of the Criminal Code for an extension of the time for service and for an order validating the service already made (an order nunc pro tunc).

The Saskatchewan Court of Queen's Bench allowed the Crown's application, extended the time for service and validated the service already made.

Criminal Law - Topic 7468

Summary conviction proceedings - Appeals - Extension of time for appealing - The Saskatchewan Court of Queen's Bench reviewed the criteria that must be met before it would grant a Crown's motion under s. 750(2) of the Criminal Code to extend the time in which to file and serve a notice of appeal - The court extended the time for service in a case where the Crown sought to appeal the dismissal of a charge involving an alcohol related driving offence, where the necessary criteria were met - See paragraphs 26 to 28.

Practice - Topic 2657

Service - Validation - Nunc pro tunc - The Crown served an accused with a notice of appeal after the time for service expired - The Crown applied for an extension of the time for service under s. 750(2) of the Criminal Code and for an order validating the service already made - The Saskatchewan Court of Queen's Bench reviewed the power of the court to grant such nunc pro tunc orders, extended the time for service of the notice of appeal and validated the notice already served - See paragraphs 29 to 52.

Practice - Topic 3055

Applications and motions - Interlocutory applications or motions - What constitute - The Crown applied for an extension of the time to serve a notice of appeal - The Crown argued that the motion was interlocutory and thus it could under Rule 319, in special circumstances, introduce affidavits including statements of belief - The accused maintained that the motion was final - The Saskatchewan Court of Queen's Bench set out the test to determine whether such proceedings are interlocutory or final and held that this motion was interlocutory for the purposes of Rule 319 - See paragraphs 6 to 15.

Practice - Topic 3678

Evidence - Affidavits - Use of - Affidavits made on information and belief - Saskatchewan Queen's Bench Rules, Rule 319, provided that on interlocutory motions, affidavits including statements of belief were admissible "under special circumstances" - The Saskatchewan Court of Queen's Bench discussed what the phrase "under special circumstances" meant and whether evidence of "special circumstances" need be presented to the court before such affidavits were admissible - See paragraphs 16 to 21.

Practice - Topic 3678

Evidence - Affidavits - Use of - Affidavits made on information and belief - On a motion to extend the Crown's time to serve a notice of appeal, the Crown sought to introduce under Queen's Bench Rule 319, certain affidavits based on statements of belief - The Saskatchewan Court of Queen's Bench allowed the affidavits to be admitted but criticized the fact that the affidavits did not give the source of information upon which the beliefs were based - See paragraphs 22 to 24.

Practice - Topic 3682

Evidence - Affidavits - Use of - Interlocutory applications - Saskatchewan Queen's Bench Rules, Rule 319, provided that on interlocutory motions affidavits including statements of belief were admissible "under special circumstances" - The Saskatchewan Court of Queen's Bench discussed what the phrase "under special circumstances" meant and whether evidence of "special circumstances" need be presented to the court before such affidavits were admissible - See paragraphs 16 to 21.

Practice - Topic 5409

Judgments and orders - Nunc pro tunc - The Saskatchewan Court of Queen's Bench stated that in absence of some specific restriction on the power of the court, the court has the inherent right to make an order nunc pro tunc - See paragraph 48.

Practice - Topic 5729

Judgments and orders - Final judgments - What constitutes - The Saskatchewan Court of Queen's Bench discussed the distinction between final or interlocutory proceedings and between final or interlocutory orders - See paragraphs 6 to 15.

Practice - Topic 5779

Judgments and orders - Interlocutory judgments - What constitute - The Saskatchewan Court of Queen's Bench discussed the distinction between final or interlocutory proceedings and between final or interlocutory orders - See paragraphs 6 to 15.

Words and Phrases

Special circumstances - The Saskatchewan Court of Queen's Bench discussed the meaning of the phrase "special circumstances" in Rule 319 of the Saskatchewan Court of Queen's Bench Rules - See paragraphs 16 to 21.

Cases Noticed:

R. v. Holmes (1982), 2 C.C.C.(3d) 471, not folld. [para. 5].

Salaman v. Warner, [1891] 1 Q.B. 734, folld. [para. 9].

Newkirk v. Stees (1910), 14 W.L.R. 707, folld. [para. 10].

Hudon v. Tremblay, [1931] S.C.R. 624, folld. [para. 10].

Bozson v. Altrincham Urban District Council, [1903] 1 K.B. 547, dist. [para. 10].

Alexander Hamilton Institutes v. Chambers, Re, [1921] 3 W.W.R. 520; 14 Sask. L.R. 489, dist. [para. 11].

Salter Rex and Co. v. Ghosh, [1971] 2 Q.B. 597, folld. [para. 12].

Gibson v. Drennon, 1 W.L.R. 577, folld. [para. 13].

Meridian Printing (1979) Ltd. v. Donald and Donald's Garage Ltd., [1981] 4 W.W.R. 472; 12 Sask.R. 234, refd to. [para. 18].

Newkirk v. International Harvester Company of Canada Limited, 53 W.W.R.(N.S.) 368, refd to. [para. 18].

R. v. Westman, [1982] 4 W.W.R. 410, folld. [para. 26].

Lamson v. District Court Judge; R. v. Sharpe and Inglis, [1921] 3 W.W.R. 674; 36 C.C.C. 326, not folld. [para. 31].

R. v. Black, [1969] 3 C.C.C. 209, not folld. [para. 38].

R. v. Keller (1968), 3 C.C.C. 215, not folld. [para. 38].

R. v. Kostiuk (1977), 4 A.R. 116 (C.A.), refd to. [para. 42].

Toronto Railway Company v. King, [1908] A.C. 260, folld. [para. 49].

Ontario Bank v. Chaplin, 20 S.C.R. 152, folld. [para. 50].

R. v. Miles (1976), 8 N.R. 211; 73 D.L.R.(3d) 1, folld. [para. 51].

Statutes Noticed:

Criminal Code of Canada, R.S.C. 1970, c. C-34, sect. 750(2) [para. 2].

Rules of Court (Sask.), Queen's Bench Rules, rule 319 [para. 17].

Authors and Works Noticed:

Wharton's Law Lexicon (14th Ed.), p. 706 [para. 1].

Williston and Rolls, The Law of Civil Procedure, p. 470 [para. 6].

Counsel:

D.R. Cann, for the Crown;

H.G. Walker, for the respondent.

This application was heard before Armstrong, J., of the Saskatchewan Court of Queen's Bench, who delivered the following decision on August 27, 1985: