






Citation:



R. v. Millar



Date:
20030115











2003 BCCA 78



Docket:



CA029658





Registry:  Vancouver





COURT OF APPEAL
  FOR BRITISH COLUMBIA





ORAL REASONS FOR JUDGMENT





BEFORE THE HONOURABLE

Madam Justice Prowse









January 15, 2003

























Vancouver,
        B.C.













BETWEEN:





REGINA





RESPONDENT





AND:





MICHAEL SPENCER MILLAR





APPELLANT


























Appellant
  appearing in person





J. Hyman



appearing
  for the (Crown) Respondent







[1]

PROWSE, J.A.
:
  This is an application on behalf of the federal Crown seeking to have Mr.
  Millars motion for an extension of time to review the order of the Chief
  Justice quashed on the basis that a panel of three members of this Court does
  not have jurisdiction to review the decision.

[2]

The manner in which this application arose is
  that Mr. Millar was initially acquitted of charges under the
Income Tax
  Act
by a Provincial Court judge.  The Crown appealed that decision to the Supreme Court, and
  the Supreme Court justice substituted convictions on the four counts.  Mr.
  Millar then sought leave to appeal the decision of the Summary
    Conviction Appeal Court to this Court.  That application
  was heard by Chief Justice Finch.  In reasons for judgment dated November 5,
  2002, Chief Justice Finch dismissed
  Mr. Millars application for leave to appeal from the Summary
    Conviction Appeal Court.  He dismissed the
  application primarily on the basis that Mr. Millar had not identified a
  question of law alone on the appeal, but rather that the issue Mr. Millar
  raised involved questions of mixed fact and law.

[3]

On December 13
th
, Mr. Millar brought
  on an application seeking an extension of time in which to seek a variation
  of the order of the Chief Justice.  It was that motion which triggered the
  Crowns motion which is before me today.

[4]

The question of whether or not there is
  jurisdiction in a panel of this Court to review the decision of a single justice
  on an application for leave to appeal in a summary conviction matter has now
  been resolved definitively by the decision of this Court in
R. v. Stojanovski
,
  (2002) B.C.J. No. 2863.  The Court in that case held that there is no
  jurisdiction in this Court to review the decision of a single justice in that
  regard.  That decision followed upon earlier decisions which, as Mr. Millar
  noted, might have cast some doubt on whether or not this Court had such
  jurisdiction.  As I say, the matter has been laid to rest by the
Stojanovski
decision.

[5]

Mr. Millar sought to raise arguments before me
  that he had not been granted a fair hearing or fair process before Chief
  Justice Finch.  He indicates that he was told something by a justice in
  chambers on a 13(3) reference which led him to believe that he would have to
  come prepared on his application for leave to appeal to argue the appeal as a
  whole.  He says that when he appeared before Chief Justice Finch he was advised
  that that was not the case.  Mr. Millar says he does not feel that he was given
  sufficient guidance by the Chief Justice to indicate how he should proceed.  He
  said there was an unfairness in the process which, in his view, should be the
  subject of review.  He reads the cases decided by this and other courts as
  leaving a doorway open for special circumstances in order to seek a review.  He
  also says that his circumstances amount to special circumstances.

[6]

Apart from the fact that this Court has no
  jurisdiction to review, as already stated, I note that the Chief Justice stated
  in his reasons that:

Mr. Millar ably argued his application in
  person.  At the hearing he was unable to identify for me a question of law
  alone which he would seek to raise on the appeal.  Having given the matter
  further consideration, I have been unable to detect any such question of law
  alone myself.





[7]

The Chief Justice then went on to make the
  finding that the question which Mr. Millar was seeking to raise was a question
  of mixed law and fact.

[8]

In the circumstances, I am satisfied that the
  application by the Crown should be granted, and that Mr. Millars application
  for an extension of time to vary the order should be quashed.

The Honourable Madam Justice Prowse







