R. v. Lindsay (D.-K.), 2006 BCCA 150

• Judge: Newbury, Hall and Kirkpatrick, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: March 13, 2006
• Jurisdiction: British Columbia
• Citations: 2006 BCCA 150;(2006), 224 B.C.A.C. 172 (CA)

R. v. Lindsay (D.-K.) (2006), 224 B.C.A.C. 172 (CA);

    370 W.A.C. 172

MLB headnote and full text

Temp. Cite: [2006] B.C.A.C. TBEd. AP.003

Regina (respondent) v. David Lindsay (David-Kevin: Lindsay) (appellant)

(CA032693; 2006 BCCA 150)

Indexed As: R. v. Lindsay (D.-K.)

British Columbia Court of Appeal

Newbury, Hall and Kirkpatrick, JJ.A.

March 28, 2006.

Summary:

The Crown had been having trouble serving Lindsay on income tax charges as he refused to "accept" service. The Crown became aware that he was in Provincial Court on a traffic ticket matter. The Crown had the income tax file brought forward using a "call date" form. After the traffic ticket was dealt with, Lindsay left without the court's permission. The court asked a sheriff to bring him back. The income tax charges were then read to him. Lindsay did not appear in court when required to do so at a later date, a warrant was issued and he was brought to court on the income tax charges and a charge of failing to appear. Lindsay applied for orders in the nature of prohibition and certiorari to have the income tax charges quashed. He argued that the "call date" form by which his file was brought forward was invalid because s. 34(2) of the Interpretation Act provided that the procedures at Part XVI of the Criminal Code applied to Income Tax Act offences and the Code made no provision for a court to compel an accused to attend in court by means of a "call date" form; therefore, the use of the form tainted, and indeed invalidated, all that occurred in Provincial Court thereafter.

The British Columbia Supreme Court, in a decision reported at [2005] B.C.T.C. 484, dismissed the applications. Lindsay appealed.

The British Columbia Court of Appeal dismissed the appeal.

Courts - Topic 2083

Jurisdiction - Extent of - Statutory courts - The Crown had been having trouble serving Lindsay on income tax charges as he refused to "accept" service - The Crown became aware that he was in Provincial Court on a traffic ticket matter - The Crown had the income tax file brought forward using a "call date" form - Lindsay applied for orders in the nature of prohibition and certiorari to have the income tax charges quashed - He argued that the "call date" form was invalid because s. 34(2) of the Interpretation Act provided that the procedures at Part XVI of the Criminal Code applied to Income Tax Act offences and the Code made no provision for a court to compel an accused to attend in court by means of a "call date" form; therefore, the use of the form tainted, and indeed invalidated, all that occurred in Provincial Court thereafter - The British Columbia Court of Appeal affirmed the dismissal of the applications - The fact that the Provincial Court was a statutory court without inherent jurisdiction did not prevent it from implementing internal or, indeed, informal procedures intended to promote the efficient administration of its statutory responsibilities - The "call date" form was but one of those procedures - See paragraphs 1 to 9.

Criminal Law - Topic 2810

Jurisdiction - General principles - Jurisdiction over the accused - The Crown had been having trouble serving Lindsay on income tax charges as he refused to "accept" service - The Crown became aware that he was in Provincial Court on a traffic ticket matter on March 2, 2004 - The Crown had the income tax file brought forward using a "call date" form - After the traffic ticket was dealt with, Lindsay left without the court's permission - The court asked a sheriff to bring him back - The income tax charges were then read to him - Lindsay did not appear in court when required to do so at a later date, a warrant was issued and he was brought to court on the income tax charges and a failure to appear charge - Lindsay applied for orders in the nature of prohibition and certiorari to have the income tax charges quashed - He argued that the Provincial Court had not "acquired" jurisdiction over him in respect of the income tax charges on March 2, 2004, and if it did, it had lost and did not "reacquire" jurisdiction when he was forcibly brought back into the courtroom by the sheriff - The British Columbia Court of Appeal affirmed the dismissal of the applications - Jurisdiction was not affected by the manner in which an accused was brought before the court, assuming the charging document was not defective - See paragraphs 10 to 22.

Trials - Topic 1072

Summary convictions - Jurisdiction - Loss of jurisdiction - [See Criminal Law - Topic 2810 ].

Cases Noticed:

R. v. Isbell (1928), 51 C.C.C. 362 (Ont. C.A.), refd to. [para. 11].

R. v. Gougeon (1980), 55 C.C.C.(2d) 218 (Ont. C.A.), refd to. [para. 11].

R. v. Walton (1905), 10 C.C.C. 269 (Ont. C.A.), refd to. [para. 11].

R. v. Poje, [1953] 1 S.C.R. 516, refd to. [para. 11].

R. v. Sidor (1982), 39 A.R. 541 (Q.B.), refd to. [para. 11].

R. v. Tait, [2001] O.J. No. 2948 (C.J.), refd to. [para. 11].

R. v. Dubois (1986), 66 N.R. 289; 41 Man.R.(2d) 1; 25 C.C.C.(3d) 221 (S.C.C.), refd to. [para. 12].

R. v. Horseferry, Rhode Magistrate's Court; Ex parte Bennett - see R. v. Bennett (A.P.).

R. v. Bennett (A.P.), [1994] 1 A.C. 42; 155 N.R. 372 (H.L.), refd to. [para. 16].

R. v. Whiteside (1904), 8 C.C.C. 478 (Ont. C.A.), refd to. [para. 17].

R. v. Naylor (1978), 42 C.C.C.(2d) 12 (Ont. C.A.), refd to. [para. 19].

Authors and Works Noticed:

Ewaschuk, Eugene G., Criminal Pleadings and Practice in Canada (2nd Ed. 1987) (Looseleaf), para. 1:7120 [para. 11].

Counsel:

David Lindsay (David-Kevin: Lindsay), appeared on his own behalf;

J. Hyman, for the respondent.

This appeal was heard at Vancouver, B.C., on March 13, 2006, by Newbury, Hall and Kirkpatrick, JJ.A., of the British Columbia Court of Appeal. Newbury, J.A., delivered the following written reasons for the court on March 28, 2006.