R. v. Lindsay (D.K.), (2004) 187 Man.R.(2d) 236 (CA)

• Judge: Philp, Monnin and Freedman, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: September 13, 2004
• Jurisdiction: Manitoba
• Citations: (2004), 187 Man.R.(2d) 236 (CA);2004 MBCA 147

R. v. Lindsay (D.K.) (2004), 187 Man.R.(2d) 236 (CA);

    330 W.A.C. 236

MLB headnote and full text

Temp. Cite: [2004] Man.R.(2d) TBEd. OC.029

Her Majesty The Queen (respondent/respondent) v. David Kevin Lindsay (accused/applicant/appellant)

(AR 03-30-05692; 2004 MBCA 147)

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

Manitoba Court of Appeal

Philp, Monnin and Freedman, JJ.A.

September 13, 2004.

Summary:

The appellant was charged under s. 175(1) of the Criminal Code with causing a disturbance. The charge was pending in the Provincial Court. The appellant brought a motion for orders directing subpoenas to be issued to Prime Minister Jean Chrétien and his Chief Physical Security Officer. The appellant argued that the evidence that those witnesses would give would establish that there was no lawful jurisdiction or authority to appoint the Governor General, who had to approve of all legislation in the name of the Queen, and therefore the Criminal Code and all other federal legislation was of no force and effect. In a second motion, the appellant sought, inter alia, an order that the Attorney General of Manitoba and a Crown attorney assigned to prosecute his case be cited for contempt of court for abusing the court's process.

The Manitoba Court of Queen's Bench dismissed the motions (2003 MBQB 194). The appellant appealed. The appellant also filed a motion for orders declaring that the perimeter searches carried out under the Court Security Act at the Winnipeg Law Courts were unlawful, unconstitutional and void for vagueness, that he was entitled to enter the Law Courts without being searched and that the Court Security Act was unlawful and unconstitutional.

The Manitoba Court of Appeal dismissed the appeal and the motion.

Civil Rights - Topic 1641.1

Property - Search and seizure - Courthouse security programs - The appellant filed a motion for orders declaring that the perimeter searches carried out under the Court Security Act at the Winnipeg Law Courts were unlawful, unconstitutional and void for vagueness, that he was entitled to enter the Law Courts without being searched and that the Court Security Act was unlawful and unconstitutional - The Manitoba Court of Appeal dismissed the motion - See paragraphs 13 to 19.

Civil Rights - Topic 3107

Trials - Due process, fundamental justice and fair hearings - Void for vagueness doctrine - [See Civil Rights - Topic 1641.1 ].

Contempt - Topic 6021

Appeals - Right of appeal - General - The Manitoba Court of Appeal stated that there was no right of appeal from the dismissal of a criminal contempt application - See paragraph 28.

Courts - Topic 680

Judges - Disqualification - Conflict of interest - [See Courts - Topic 691 ].

Courts - Topic 691

Judges - Disqualification - Bias - Reasonable apprehension of bias - The appellant was charged under the Criminal Code with causing a disturbance - The charge was pending in the Provincial Court - The appellant moved for orders directing subpoenas to be issued to Prime Minister Jean Chrétien and his Chief Physical Security Officer - The appellant argued that the evidence that those witnesses would give would establish that there was no lawful jurisdiction and/or authority to appoint the Governor General, who had to approve of all legislation in the name of the Queen, and therefore the Criminal Code and all other federal legislation was of no force and effect - The motion was dismissed - The appellant appealed - He argued that since the motions judge was appointed by the Governor General, he was in effect ruling upon his own status as a justice and he therefore had a direct pecuniary interest in the outcome and was required to recuse himself - The appellant also argued manifest bias or a reasonable apprehension of bias arising from the language used by the motions judge - The appellant took issue with words such as "scandalous, vexatious, frivolous, and irrelevant" used by the motions judge in describing the appellant's affidavit and brief - The Manitoba Court of Appeal rejected the appellant's allegations of bias - See paragraphs 29 to 37.

Courts - Topic 1403

Administration - Access to courts - [See Civil Rights - Topic 1641.1 ].

Criminal Law - Topic 5412

Evidence and witnesses - Witnesses - Subpoena or summons - General - The appellant was charged under the Criminal Code with causing a disturbance - The charge was pending in the Provincial Court - The appellant moved for orders directing subpoenas to be issued to Prime Minister Jean Chrétien and his Chief Physical Security Officer - A Queen's Bench judge dismissed the motion - The appellant appealed - The Manitoba Court of Appeal dismissed the appeal - However, the court commented that it had some doubt that the motions judge should have accepted jurisdiction on the motion - The charge against the appellant was a summary conviction proceeding in the Provincial Court - A Provincial Court judge had authority pursuant to s. 699(2)(b) of the Code to issue the subpoenas that the appellant sought - There was no need for the appellant to apply to a Queen's Bench judge to issue out of province subpoenas - Further, there did not appear to be an appeal to the Court of Appeal from the order of a superior court judge made under s. 699(2)(b) of the Code - See paragraphs 23 to 26.

Evidence - Topic 4472

Witnesses - Attendance and oath - Attendance - Subpoena - Issuance of - [See Criminal Law - Topic 5412 ].

Cases Noticed:

R. v. Lindsay (D.K.) (1999), 142 Man.R.(2d) 96; 212 W.A.C. 96 (C.A.), refd to. [para. 15].

Gillespie v. Manitoba (Attorney General) (2000), 145 Man.R.(2d) 229; 218 W.A.C. 229; 2000 MBCA 1, refd to. [para. 17].

R. v. Lindsay (D.K.) (2001), 158 Man.R.(2d) 176; 2001 MBQB 226, refd to. [para. 18].

R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; 58 N.R. 81; 60 A.R. 161; [1985] 3 W.W.R. 481; 18 C.C.C.(3d) 385; 18 D.L.R.(4th) 321; 37 Alta. L.R.(2d) 97; 85 C.L.L.C. 14,023; 13 C.R.R. 64, refd to. [para. 24].

German v. Canada (Attorney General), Harvie and Jacobs (1977), 2 A.R. 612; 34 C.C.C.(2d) 339 (C.A.), refd to. [para. 26].

Medicine Hat Ltd. v. German (No. 2) - see German v. Canada (Attorney General), Harvie and Jacobs.

Poje v. British Columbia (Attorney General), [1953] 1 S.C.R. 516, refd to. [para. 28].

Church of Scientology of Toronto v. Cooper, [1984] O.J. No. 1400 (H.C.), refd to. [para. 28].

Lane, Re; Re Hobson (1984), 58 B.C.L.R. 261 (C.A.), refd to. [para. 28].

R. v. Dick, [2001] B.C.J. No. 2272; 2001 BCPC 275, refd to. [para. 32].

R. v. Lindsay (D.-K), [2002] B.C.T.C. 248; 2002 BCSC 248, affd. (2002), 180 B.C.A.C. 4; 297 W.A.C. 4; 2002 BCCA 687, refd to. [para. 33].

R. v. R.D.S., [1997] 3 S.C.R. 484; 218 N.R. 1; 161 N.S.R.(2d) 241; 477 A.P.R. 241; 118 C.C.C.(3d) 353; 10 C.R.(5th) 1, refd to. [para. 36].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 699(2) [para. 23].

Counsel:

A.J. Ladyka and E. Szach, for the respondent.

This appeal and motion were heard on September 13, 2004, before Philp, Monnin and Freedman, JJ.A., of the Manitoba Court of Appeal. The decision of the Court of Appeal was pronounced on September 13, 2004, and the following written reasons were delivered by Philp, J.A., on October 13, 2004.