R. v. Smith, (1983) 22 Sask.R. 250 (CA)

• Judge: Brownridge, Hall and MacDonald, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: February 25, 1983
• Jurisdiction: Saskatchewan
• Citations: (1983), 22 Sask.R. 250 (CA)

R. v. Smith (1983), 22 Sask.R. 250 (CA)

MLB headnote and full text

R. v. Smith

(No. 662)

Indexed As: R. v. Smith

Saskatchewan Court of Appeal

Brownridge, Hall and MacDonald, JJ.A.

February 25, 1983.

Summary:

The accused was convicted of tax evasion under the Income Tax Act and sentenced to pay a $50,000.00 fine. The Crown filed a notice of appeal against sentence, but was unable to serve the accused within 30 days as required by Rule 3 of the Summary Conviction Appeal Rules. The Crown applied for an extension of time to serve the notice of appeal.

The Saskatchewan Court of Queen's Bench, in a decision unreported in this series of reports, dismissed the application. The Crown applied for leave to appeal pursuant to s. 771 of the Criminal Code of Canada.

The Saskatchewan Court of Appeal, Brownridge, J.A., dissenting, refused leave to appeal because there was no question of law involved. Brownridge, J.A., held that the judge's refusal to grant an extension of time involved a question of law.

Criminal Law - Topic 7603

Summary conviction proceedings - Appeal to a court of appeal - What constitutes a question of law - The Saskatchewan Court of Appeal held that the exercise of discretion by a chamber's judge in refusing to extend the time for filing and serving a notice of appeal was not a question of law from which an appeal lay under s. 771(1) of the Criminal Code of Canada.

Cases Noticed:

Gauthier v. The King (1931), 56 C.C.C. 113 (S.C.C.), consd. [para. 16].

R. v. Hook (1955), 113 C.C.C. 248 (Ont. C.A.), consd. [para. 16].

Waite v. R. (1965), 46 C.R. 23 (N.B.C.A.), consd. [para. 16].

R. v. Pantel (1952-53), 7 W.W.R.(N.S.) 295 (Sask. C.A.), consd. [para. 16].

R. v. Osgoode Sand and Gravel Ltd. (1978), 41 C.C.C.(2d) 503 (Ont. Div. Ct.), consd. [paras. 5, 17, 21].

R. v. Dennis, [1960] S.C.R. 286; 125 C.C.C. 321, consd. [para. 17].

R. v. Trussler (1960), 34 W.W.R.(N.S.) 548, consd. [para. 18].

R. v. Farmers & Merchants Trust Co. Ltd., [1964] 2 C.C.C. 46, consd. [para. 19].

Mulvihill v. R., [1914] 23 C.C.C. 194, consd. [para. 6].

Darville v. R. (1956), 25 C.R. 1, consd. [para. 7].

R. v. Mitchell, [1966] 2 C.C.C. 209, agreed with [para. 8].

R. v. Barth, [1973] 3 W.W.R. 355, refd to. [para. 23].

Neal v. Attorney General of Saskatchewan (1977), 17 N.R. 68, consd. [para. 25].

Farmers and Merchants Trust Company Ltd. v. Hughes (1964), 49 W.W.R.(N.S.) 443, consd. [para. 26].

R. v. Hammerling, [1980] 1 W.W.R. 572; 1 Man.R.(2d) 246, refd to. [para. 34].

R. v. Dunbrook (1979), 44 C.C.C.(2d) 264, refd to. [para. 35].

R. v. Cole (1976), 18 Nfld. & P.E.I.R. 181; 47 A.P.R. 181; 33 C.C.C.(2d) 242, refd to. [para. 36].

Statutes Noticed:

Criminal Code of Canada, R.S.C. 1970, c. C-34, sect. 755 [para. 30]; sect. 771(1) [paras. 4, 15, 30].

Counsel:

G.D. Campbell, for the appellant;

D.A. Shapiro, for the respondent.

This appeal was heard before BROWNRIDGE, HALL and MacDONALD, JJ.A., of the Saskatchewan Court of Appeal. The decision of the Court of Appeal was delivered on February 25, 1983, when the following opinions were filed:

HALL, J.A. - see paragraphs 1 to 9;

BROWNRIDGE, J.A., dissenting - see

paragraphs 10 to 37.

MacDONALD, J.A., concurred with HALL, J.A.