R. v. Kostiuk, (1977) 4 A.R. 116 (CA)

• Judge: McDermid, Haddad and Morrow, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: May 24, 1977
• Citations: (1977), 4 A.R. 116 (CA)

R. v. Kostiuk (1977), 4 A.R. 116 (CA)

MLB headnote and full text

R. v. Kostiuk

Indexed As: R. v. Kostiuk

Alberta Supreme Court

Appellate Division

McDermid, Haddad and Morrow, JJ.A.

May 24, 1977.

Summary:

This case arose out of a charge against the accused of driving with an excessive blood-alcohol reading contrary to s. 236 of the Criminal Code of Canada, R.S.C. 1970, c. C-34. The accused was acquitted before a provincial judge on September 23, 1975. On May 3, 1976, the Crown obtained an order extending the time for service and filing of a notice of appeal. The notice was served before the extended time expired, but the Crown was presumably unaware of this and applied for a further extension. The application was granted and "the time for service" was extended without reference to filing. On the hearing of the appeal the judge dismissed the appeal on the ground that the second order did not have the effect of extending the time for filing. The Crown appealed.

The Alberta Court of Appeal allowed the appeal. The Court of Appeal held that under s. 750 of the Criminal Code as amended there was no limitation on when the extension of time for appeal could be sought, how long the extension could be granted or how many extensions could be granted. The Court of Appeal held that the extension of "the time for service" with no reference to filing in the second order was sufficient to grant an extension for both service and filing.

Criminal Law - Topic 7468

Summary conviction proceedings - Appeals - Extension of time for appealing - Criminal Code of Canada, R.S.C. 1970, c. C-34, s. 750, as amended S.C. 1972, c. 13, s. 66 - The Alberta Court of Appeal held that under s. 750 as amended there was no limitation on when an extension of time for appeal could be sought, how long an extension could be granted or how many extensions could be granted - The Court of Appeal held that an extension of "the time for service" of a notice of appeal by a judge with no reference to filing the notice of appeal was sufficient to grant an extension for both service and filing.

Cases Noticed:

R. v. Bell (1968), 64 W.W.R.(N.S.) 704, consd. [para. 14].

R. v. Harris, [1960] O.R. 248, consd. [para. 15].

Mason v. The Queen, [1972] 1 W.W.R. 222, consd. [para. 16].

R. v. Martin (2) (1971), 4 C.C.C.(2d) 276, refd to. [para. 20].

Statutes Noticed:

Criminal Code of Canada, R.S.C. 1970, c. C-34, sect. 750, as amended S.C. 1972, c. 13, sect. 66 [para. 8].

Counsel:

I.F. Kirkpatrick, for the Crown appellant;

A. Hepner, for the respondent.

This case was heard before McDERMID, HADDAD and MORROW, JJ.A., of the Alberta Supreme Court, Appellate Division.

On May 24, 1977, MORROW, J.A., delivered the following judgment of the Appellate Division: