R. v. Gillespie (G.D.), (1997) 115 Man.R.(2d) 161 (CA)

• Judge: Huband, Philp, Twaddle, Lyon and Monnin, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: December 16, 1996
• Jurisdiction: Manitoba
• Citations: (1997), 115 Man.R.(2d) 161 (CA)

R. v. Gillespie (G.D.) (1997), 115 Man.R.(2d) 161 (CA);

    139 W.A.C. 161

MLB headnote and full text

Her Majesty The Queen (respondent/applicant) v. Gordon Denis Gillespie (accused/appellant/respondent)

(Suit No. AR 96-30-02942)

Indexed As: R. v. Gillespie (G.D.)

Manitoba Court of Appeal

Huband, Philp, Twaddle, Lyon and Monnin, JJ.A.

April 21, 1997.

Summary:

The accused appealed his conviction for the summary conviction offence of making harassing telephone calls.

The Manitoba Court of the Queen's Bench, in a decision not reported in this series of reports, dismissed the appeal. The accused applied under s. 839(1) of the Criminal Code for leave to appeal to the Court of Appeal. The application was refused by Scott, C.J.M. The accused filed a notice of appeal asking the Court of Appeal to set aside the order of Scott, C.J.M., and to grant the accused leave to appeal. The Crown moved to strike the notice of appeal on the ground that there was no right to appeal to the Court of Appeal from the refusal of a judge thereof to grant leave to appeal under s. 839(1) of the Code.

The Manitoba Court of Appeal, Twaddle and Huband, JJ.A., dissenting, granted the Crown's motion to strike the notice of appeal.

Criminal Law - Topic 7602

Summary conviction proceedings - Appeal to a court of appeal - Requirement of leave - [See Criminal Law - Topic 7607 ].

Criminal Law - Topic 7607

Summary conviction proceedings - Appeal to a court of appeal - When available - General - The accused appealed his con­viction for a summary conviction offence - The Manitoba Court of the Queen's Bench dismissed the appeal - The accused applied under s. 839(1) of the Criminal Code for leave to appeal to the Court of Appeal - The application was refused by a single judge of the Court of Appeal (Scott, C.J.M.) - The accused filed a notice of appeal asking the Court of Appeal to set aside the order of Scott, C.J.M., and to grant the accused leave to appeal - The Manitoba Court of Appeal held that the accused did not have the right to appeal, or to seek leave to appeal, to the Court of Appeal from the order of Scott, C.J.M. - Nor did he have the right to have his application for leave to appeal against the decision of the Queen's Bench judge determined by the court - See paragraphs 1 to 32.

Cases Noticed:

West-Man Culvert & Metal Co. v. Prov­incial Municipal Assessor (Man.) (1992), 81 Man.R.(2d) 112; 30 W.A.C. 112 (C.A.), refd to. [para. 9].

Nocita v. Municipal Board (Man.) et al. (1979), 10 C.P.C. 50 (Man. C.A.), refd to. [para. 9].

R. v. Ashton (1948), 6 C.R. 1 (Ont. C.A.), refd to. [para. 10].

Welch v. R., [1950] S.C.R. 412, refd to. [para. 11].

Montréal (City) v. MacDonald, [1986] 1 S.C.R. 460; 67 N.R. 1, refd to. [para. 13].

Williams v. Grand Trunk Railway Co. of Canada (1905), 36 S.C.R. 321 (P.C.), refd to. [para. 14].

Herman v. Canada (Attorney General), [1978] 1 S.C.R. 729; 23 N.R. 235, refd to. [para. 14].

Canada (Minister of Indian Affairs and Northern Development) v. Ranville et al., [1982] 2 S.C.R. 518; 44 N.R. 616, refd to. [para. 14].

Industrial Acceptance Corp v. Canada Permanent Trust Co., [1931] S.C.R. 652, refd to. [para. 20].

Macri v. Edmonton (City) (1977), 2 A.R. 378; 2 Alta. L.R.(2d) 62 (C.A.), refd to. [para. 20].

Scullion v. Canadian Breweries Transport Ltd., [1956] S.C.R. 512, refd to. [para. 27].

R. v. Gelz (1990), 55 C.C.C.(3d) 425 (B.C.C.A.), folld. [para. 29].

Sproule, Re (1886), 12 S.C.R. 140, refd to. [para. 36].

R. v. Foster (1954), 110 C.C.C. 214 (Ont. C.A.), refd to. [para. 40].

R. v. Walker (1978), 46 C.C.C.(2d) 124 (Que. C.A.), refd to. [para. 41].

R. v. Coulombe (O.) (1988), 15 Q.A.C. 76; 64 C.R.(3d) 58 (C.A.), refd to. [para. 42].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 482 [para. 8]; sect. 675(1), sect. 675(4) sect. 839(1), sect. 839(2) [para. 4].

Rules of Court (Man.), Court of Appeal Rules (Civil and Language), rule 46(1), rule 46(3) [para. 6].

Rules of Court (Man.), Criminal Appeal Rules, rule 28(2), rule 29 [para. 21]; rule 45 [para. 7].

Counsel:

S.D. Greenberg, for the Crown;

R.I. Histed, for the respondent.

This appeal was heard on December 16, 1996, before Huband, Philp, Twaddle, Lyon and Monnin, JJ.A., of the Manitoba Court of Appeal. On April 21, 1997, the judgment of the court was rendered and the following opinions were filed:

Philp, J.A. (Lyon and Monnin, JJ.A., concurring) - see paragraphs 1 to 32;

Twaddle, J.A., dissenting (Huband, J.A., concurring) - see paragraphs 33 to 46.