



COURT 
    OF APPEAL FOR BRITISH COLUMBIA




Citation:


R. 
          v. Lindsay,







2008 
          BCCA 30



Date: 20080123

Docket: CA032186

Between:

Regina

Respondent

And

David 
    Kevin Lindsay

Applicant




Before:


The 
          Honourable Mr. Justice Hall




The 
          Honourable Mr. Justice Mackenzie




The 
          Honourable Mr. Justice Smith








Applicant


Appearing In Person




U. 
          Botz


Counsel for the Respondent




Place 
          and Date of Hearing:


Vancouver, British Columbia




21 November 2007




Place 
          and Date of Judgment:


Vancouver, British Columbia




23 January 2008








Written 
          Reasons by
:




The 
          Honourable Mr. Justice Smith




Concurred 
          in by:




The 
          Honourable Mr. Justice Hall
The Honourable Mr. Justice Mackenzie



Reasons 
    for Judgment of the Honourable Mr. Justice Smith:

Introduction

[1]

Mr. Lindsay applies for a review of a chambers order made by Mr. Justice 
    Lowry denying him leave to appeal pursuant to s. 839(1) of the
Criminal 
    Code
, R.S.C. 1985, c. C-46, from the dismissal of a summary conviction 
    appeal.  Section 839(1) provides:

[] an appeal to the court of appeal [] may, with leave of that court 
    or a judge thereof, be taken on any ground that involves a question of law 
    alone [].

[2]

The standard applicable on the application before Mr. Justice Lowry 
    was that described in
R. v. Lord
, 2005 BCCA 165, [2005] B.C.J. 
    No. 627 (QL) (Chambers, Saunders J.A.) ¶ 6: the applicant

[] must establish that the appeal is on a question of law alone.  If 
    it is, this Court has discretion whether to grant leave to appeal.  The two 
    considerations commonly applied are the importance of the issue, and whether 
    there is a reasonable possibility of success:
R. v. Westwood
(1995), 
    63 B.C.A.C. 236, [1995] B.C.J. No. 2146, and
R. v. Hunt
(1998), 108 
    B.C.A.C. 218, [1988] B.C.J. No. 1347, although as observed by Southin J.A. 
    in
R. v. Martin
, 2004 BCCA 548, the essential question on the exercise 
    of discretion is the interests of justice.

[3]

Mr. Justice Lowry did not determine whether the proposed appeal presented 
    a question of law alone.  Rather, he dismissed the application on discretionary 
    grounds.  His reasons for doing so can be found at 2005 BCCA 376, 215 B.C.A.C. 
    47.  After noting that the appeal had no real prospect of success and that 
    the judgment under appeal appeared to be unassailable, he concluded,

[9]        I do not consider Mr. Lindsay has established that it is in 
    the interests of justice that discretion be exercised in favour of granting 
    leave to appeal.

[4]

Mr. Lindsay must meet a high standard on this application for review.  
    As Finch J.A. (now C.J.B.C.) said for the Court in
East Broadway Residents 
    Association v. Vancouver (City)
, 2000 BCCA 657, [2000] B.C.J. No. 
    2460 (QL):

[11]      The test on an application to review is whether there has been 
    an error in principle.  The incorrect exercise of discretion will not suffice.  
    In
MacMillan Bloedel v. British Columbia
, [2000] B.C.J. No. 1425, the 
    Court said:

It has not been shown to me that the Court of Appeal judge in Chambers fell 
    into any error of principle which could leave this court in a position to 
    vary his order as sought.  The standard of review by a panel of this court 
    of a decision of a single judge has been said to be that the court will not 
    interfere unless it is satisfied that the Chambers judge was wrong in the 
    legal sense and not merely that he or she exercised discretion incorrectly:  
    see
Frew v. Roberts
(1990), 44 C.P.C. (2d) 34 (B.C.C.A.).

Background

[5]

This matter has a lengthy judicial history.

[6]

Mr. Lindsay was convicted on March 25, 2002 in the Provincial Court 
    at Kamloops of driving a motor vehicle without a drivers licence, without 
    insurance, and without displaying proper licence plates, contrary to provisions 
    of the
Motor Vehicle Act
, R.S.B.C. 1996, c. 318.  The offences 
    occurred on August 27, 2001.

[7]

On April 11, 2002, Mr. Lindsay filed a notice of appeal from his convictions 
    in the Supreme Court of British Columbia.  Before his summary conviction appeal 
    was heard, he brought an application for an order that certain sections of 
    the
Court Rules Act
, R.S.B.C. 1996, c. 80, and of the
Official 
    Reporters Regulation
, B.C. Reg. 224/84, as amended, be declared of 
    no force and effect insofar as they purport to impose fees upon the transcripts 
    necessary for me to exercise and obtain my fundamental right to justice in 
    this matter.  His contention was that the impugned sections infringe his 
    constitutional rights since they amount to the selling of justice, which 
    is prohibited by
Magna Carta
.
[1]
He relied as well on the English
Bill 
    of Rights, 1689
[2]
and the
Act of Settlement, 1701
[3]
.  In comprehensive 
    written reasons published on July 30, 2003, Mr. Justice Powers dismissed the 
    application and extended the time for Mr. Lindsay to file the necessary transcripts, 
    which had expired, with liberty to apply for a further extension if necessary.  
    His reasons for judgment are reported: see 2003 BCSC 1203, 110 C.R.R. (2d) 
    30.

[8]

Mr. Lindsay filed an appeal from Mr. Justice Powers order but, on 
    May 6, 2004, the notice of appeal was quashed for want of jurisdiction by 
    a judge of this Court in chambers.

[9]

When Mr. Lindsays summary conviction appeal came on for hearing before 
    Mr. Justice Powers on June 28, 2004, he had still not provided transcripts 
    of the Provincial Court proceedings.  As a result, Mr. Justice Powers dismissed 
    his appeal.

[10]

On June 29, 2005, one year later almost to the day, Mr. Lindsays application 
    for leave to appeal to this Court from the dismissal of his appeal came on 
    for hearing before Mr. Justice Lowry.  His decision which gives rise to the 
    review application now before us was given on July 13, 2005.

The Prior Decisions

[11]

Before Mr. Justice Powers, Mr. Lindsay argued that the
Magna 
    Carta
and the English statutes mentioned above are part of the Constitution 
    of Canada.  He submitted, as he had before, that these instruments limit the 
    legislative power of Parliament and the provinces and, in particular, preclude 
    them from enacting legislation that has the effect of selling justice contrary 
    to
Magna Carta
.  Accordingly, he contended, it was beyond the 
    power of the Provincial Legislature to enact the
Official Reporters 
    Regulation
to the extent that it requires him to pay a fee to an authorized 
    reporter to obtain a transcript of the proceedings against him in the Provincial 
    Court, which was required by s. 6(7) of the
Criminal Rules of the Supreme 
    Court of British Columbia
, S.I./97-140, in order to perfect his summary 
    conviction appeal.  Further, he submitted that it is a principle of fundamental 
    justice that transcripts should be provided to him at no cost.

[12]

Mr. Justice Powers did not accede to Mr. Lindsays submissions.

[13]

First, he rejected Mr. Lindsays submission that the
Magna Carta
is a constitutional document that overrides all federal and provincial statutes.  
    Rather, following
R. v. Jebbett
, 2003 BCCA 69, [2003] B.C.J. 
    No. 238 (QL), as he was bound to do, he found that
Magna Carta
is subject to modification by provincial legislation.

[14]

Next, he rejected Mr. Lindsays submission that it is a principle of 
    fundamental justice that transcripts should be provided at no cost.  On this 
    point, he followed
R. v. Robinson
, 2002 BCSC 1062, [2002] B.C.J. 
    No. 1693 (QL), in which Blair J. reached that conclusion following, in turn,
R. v. Robinson
(1989), 70 Alta. L.R. (2d) 31, 63 D.L.R. (4th) 
    289 (C.A.).  He noted that rights of appeal are created and governed by statute 
    and adopted the reasoning of the Alberta Court of Appeal that, there being 
    no precedent for the provision of free transcripts and no principle of fundamental 
    justice requiring free transcripts, the question was properly one for the 
    provincial legislature.

[15]

Finally, he rejected Mr. Lindsays submission that the regulatory requirement 
    that fees be paid for the purchase of transcripts amounts to the selling 
    of justice and is therefore prohibited by
Magna Carta
.  He 
    concluded that the impugned regulation does not require the payment of a fee 
    in order to obtain justice, or access to justice.  Rather, he said, it simply 
    requires an appellant to provide the materials necessary to properly process 
    the appeal.  He noted, as well, that the requirement is not absolute, in that 
    Rule 6(7) gives the summary conviction appeal court discretion to relieve 
    an appellant of the requirement to provide transcripts in appropriate cases.

[16]

Accordingly, Mr. Justice Powers dismissed Mr. Lindsays application.

[17]

In refusing to grant Mr. Lindsays application for leave to appeal 
    from that order, Mr. Justice Lowry said,

[7]        Mr. Lindsay maintains that
R. v. Jebbett
was wrongly 
    decided and he seeks to cite additional authorities in support of arguments 
    that he considers were not advanced in that case.  He has, however, cited 
    no authority on this application that is binding on this Court which undermines 
    the conclusion in
Jebbett
.  Given that such rights as may be provided 
    by
Magna Carta
have so recently been held by this Court to have been 
    modified by the legislation of this province, I do not consider there to be 
    any real prospect of the proposed appeal succeeding.  Indeed, the judgment 
    from which Mr. Lindsay seeks to appeal appears to me to be unassailable. 
     I do not consider leave should be granted here as it was in
Jebbett

on what is essentially the same issue that was decided in that case.

[8]        Mr. Lindsay contends that the issue to be raised on the proposed 
    appeal is of general importance because, according to him, there are many 
    who are unable to prosecute appeals simply because of the cost of obtaining 
    transcripts.  The difficulty with what he says in that regard is that there 
    is on this application no sound basis on which it can be said that the requirement 
    for transcripts under the
Criminal Rules of the Supreme Court of British 
    Columbia
does in fact pose any significant impediment to the prosecution 
    of criminal and quasi-criminal appeals.  Certainly the cost of the transcript 
    in this case was not such as to have precluded Mr. Lindsay from prosecuting 
    his appeal.  He chose not to obtain the required transcript only to attempt 
    to prove a point.

Issues on Review

[18]

Mr. Lindsay presents an intricate submission, the essence of which 
    is that Mr. Justice Lowry erred in law when he failed to recognize that the
Magna Carta
is the foundation of the rule of law itself and 
    that it protects the rights, freedoms, and liberties of all citizens.  In 
    his submission,
Magna Carta
was received in Canada as part of 
    our constitution by virtue of the preamble to
The Constitution Act, 
    1867
, 30 & 31 Vict., c. 3 (U.K.), in which it is stated that the 
    Provinces wished to be federally united under the Crown with a Constitution 
    similar in Principle to that of the United Kingdom.  Accordingly, he submits, 
    it has constitutional status and overrides any federal or provincial statute 
    that contravenes its provisions.  He submits that this appeal raises an important 
    question of law and urges us to discharge Mr. Justice Lowrys order and to 
    grant him leave to appeal.

Discussion

[19]

Mr. Lindsay offers a large selection of judicial
obiter dicta
and academic commentary in an attempt to support his thesis that
Magna 
    Carta
trumps all legislation that contravenes its provisions.  The 
    volume of this material precludes any practical canvass of it in these reasons.  
    Suffice it to say that there is another point of view espoused by some legal 
    historians and constitutional scholars which holds that the notion that
Magna 
    Carta
provides absolute protection of individual rights against all 
    forms of prerogative, judicial, and legislative authority is primarily a political 
    conception of the document and that, as a legal instrument, it has never enjoyed 
    inviolable constitutional status in England but is part of the common law, 
    to be defended and amended as may be necessary from time to time: see, for 
    example, B.H. McPherson,
The Reception of English Law Abroad
(Brisbane, Aust.:  Supreme Court of Queensland Library, 2007) at 205; J.C. 
    Holt,
Magna Carta
, 2nd ed. (Cambridge:  Cambridge University 
    Press, 1992)  at 1-2, 16-17.  In my view, it is not necessary to the resolution 
    of this appeal to enter into this scholarly discussion since this Court has 
    pronounced upon the point raised by Mr. Lindsay.

[20]

In
Collinge v. Gee
(1968), 64 W.W.R. 321, [1968] B.C.J. 
    No. 41 (QL) (C.A.), affirmed on a different point [1968] S.C.R. 948, this 
    Court held that
Magna Carta
does not guarantee a right of a 
    litigant to have a transcript provided free of charge.  In that case,
the
appellant, who had been convicted following a trial in magistrates 
    court, wanted to consult a transcript of the proceedings to see if there were 
    grounds of appeal.  He argued, unsuccessfully, that the relevant sections 
    of the
Criminal Code

required the respondent court reporter 
    to transcribe her notes of the evidence and supply him a transcript free of 
    charge.  On appeal, he also relied on the
Canadian Bill of Rights
, 
    S.C. 1960, c. 44,

and on chapter 29 (chapter 40 of the 1215 version) 
    of
Magna Carta
,

which he submitted prohibited the sale 
    of justice.  In dismissing this submission, Robertson J.A., with whom Norris 
    J.A. agreed on this point (at 330), wrote, at 353-54:

On my own reading of the quoted 
    provisions in the
Canadian Bill of Rights
and
Magna Charta
I 
    cannot extract from them what counsel submits I should.  The words do not 
    convey to me the meaning which he submits they have.  This being so, there 
    is no purpose in elaborating on the language itself, except for one point.  
    Under sec. 2 of the
Canadian Bill of Rights
every law ***shall ***be 
    so construed and applied as not to abrogate, abridge or infringe ***any of 
    the rights or freedoms herein recognized and declared.  The effect of this 
    must be a preservative one only; there must be an existing right or freedom 
    before there can be any question of abrogation, abridgement or infringement, 
    and then such right or freedom may not be abrogated, etc.  The language is 
    not apt to create any right or freedom.  No authority in Canada or England 
    has been cited that suggests the prior existence of the right contended for 
    here.

The third judge, Branca J.A., simply stated, at 342, 
    I am unable to see the applicability of the quoted provision of the
Magna 
    Charta
.

[21]

Further, in
R. v. Jebbett
, this Court rejected an argument 
    on an appeal from conviction on a parking ticket that the
Motor Vehicle 
    Act
and the municipal bylaw in question offended the
Magna Carta
and several sections of the
Charter of Rights and Freedoms
, 
    Part I of the
Constitution Act, 1982
, being Schedule B to the
Canada Act, 1982
, 1982, c. 11 (U.K.).  In dismissing the appeal, 
    Ryan J.A., who gave judgment for the Court, said,

[4]        Unlike the Canadian
Charter of Rights and Freedoms
, 
    the
Magna Carta
is not a constitutional document.  As the Canadian 
    constitutional scholar, Peter Hogg, has noted in his text,
Constitutional 
    Law of Canada
, the
Magna Carta
and the English
Bill of Rights
are simply English statutes amenable to ordinary legislation.  The
Magna 
    Carta
was imported into the law of British Columbia by a series of enabling 
    statutes.  It remains a part of British Columbia law by virtue of sections 
    2 and 3 of the
Law and Equity Act
[R.S.B.C. 1996, c. 253], which provide:

2.         
    Subject to section 3, the Civil and Criminal Laws of England, as they existed 
    on November 19, 1858, so far as they are not from local circumstances inapplicable, 
    are in force in British Columbia, but those laws must be held to be modified 
    and altered by all legislation that has the force of law in British Columbia 
    or in any former Colony comprised within its geographical limits.

3.         
    Section 28 of the
Offences Against the Person Act
,
1828
[24 
    & 25 Vict., c. 100 (U.K.)] and all sections of the
Real Property Act, 
    1845
are not in force in British Columbia.

[5]        The statute of
Magna Carta
was discussed by Mr. Justice 
    McPhillip in
Re: Immigration Act and Munshi Singh
(1914), 6 W.W.R. 
    1347 (B.C.C.A.).  At p.1371, he said:


Magna Carta
and
The Habeus Corpus Act
[31 Cha. II, c. 2 (U.K.)], 
    ... - having relation to criminal and supposed criminal matters, as well as 
    the Act for more effectually securing the liberty of the subject ... having 
    relation to other than criminal or supposed criminal matters  is the law 
    of British Columbia, but, as we have seen, subject to be modified by all legislation 
    having the force of law in the Province of British Columbia.

Applying these principles to the case at hand, if the
Magna Carta
ever provided the rights suggested by the appellant in this case, in my view 
    those rights must be taken to have been modified by the passage of the British 
    Columbia
Motor Vehicle Act
and the Streets & Traffic Bylaw of the 
    City of Victoria.  The appellant's argument, based on
Magna Carta
, 
    cannot succeed.

[22]

Mr. Lindsay contends that
R. v. Jebbett
was decided incorrectly.  
    However,
R. v. Jebbett
does not stand alone against Mr. Lindsays 
    arguments.  The point has also been decided against him by this Court in
Collinge 
    v. Gee
and in
Re: Immigration Act and Munshi Singh
, 
    which was cited in
Collinge v. Gee
.  Given this consistent line 
    of authority, I think it highly unlikely that this Court would change course 
    and I must agree with Mr. Justice Lowrys conclusion that an appeal on this 
    basis has no real prospect of success.

[23]

Mr. Lindsay presents an alternative argument that he has a constitutional 
    right of appeal that cannot be fettered by the charging of fees for transcripts.  
    I would not accede to this submission either.  The modern right of appeal 
    is a statutory creation:  see, for example,
R. v. Lawrence
(1998), 
    104 B.C.A.C. 57, [1998] B.C.J. No. 432 (QL) (Chambers, Southin J.A.); W. Ehrcke, 
    Q.C., Appeals, Chapter XVII, in Jerome J. Atrens, Peter T. Burns, and James 
    P. Taylor,
Criminal Procedure:  Canadian Law and Practice
, vol. 3 (Markham, 
    Ont.:  LexisNexis Butterworths), updated to October 2000, at XVII-1 and XVII-2.  
    As such, it is subject to all duly enacted statutory qualifications and limitations, 
    including the rules that govern appeals.

[24]

I would not accede 
    to Mr. Lindsays submissions.  In my view, Mr. Justice Lowry did not err in 
    principle and he did not act contrary to the interests of justice.  I agree 
    with him that this appeal has no real prospect of success and I would dismiss 
    this application for review.


The Honourable Mr. Justice Smith

I agree:

The Honourable Mr. Justice Hall

I agree:

The Honourable Mr. Justice Mackenzie






[1]
C. 29 
    of
Magna Carta, 1225
, 9 Hen. III, c. 3 (U.K.) (c. 40 of
Magna Carta, 
    1215
) provides:

To no one will we sell, 
    to no one deny or delay right or justice.



[2]

An Act declaring the Rights and Liberties of the Subject, and settling 
    the Succession of the Crown
, 1 Will & Mar. 
    sess. 2 c. 2 (U.K.).



[3]

An Act for the further Limitation of the Crown, and better securing 
    the Rights and Liberties of the Subject
, 12 & 
    13 Will. III c. 2 (U.K.).


