



COURT 
    OF APPEAL FOR BRITISH COLUMBIA




Citation:


R. 
          v. Lehoux,







2006 
          BCCA 18



Date: 20060110





Docket: CA033309

Between:

Regina

Respondent



And

Raymond 
    Michel Lehoux

Appellant












Before:


The 
          Honourable Chief Justice Finch




The 
          Honourable Mr. Justice Donald




The 
          Honourable Mr. Justice Hall



Oral Reasons for Judgment




T. 
          Zanetti


Appearing as Agent for the Appellant




K.J. 
          Gillett


Counsel for the (Crown) Respondent




Place 
          and Date:


Vancouver, British Columbia




10 January 2006





[1]

HALL, J.A.
:  This is a purported appeal in an interlocutory 
    matter where the applicant appellant is currently involved in an ongoing trial 
    in the Supreme Court of British Columbia.  Counsel, on behalf of the Crown 
    respondent, has brought before us an application to quash the appeal on the 
    basis that this Court is without jurisdiction.  The grounds of appeal advanced 
    are many, including grounds relating to the effect of a stay of proceedings, 
    an allegation that the judge was biased and that he was treating the appellant 
    in a differential fashion.

[2]

Counsel for the Crown has cited to us a number of cases.  I think I 
    need only refer to two of them.  Those are previous cases in this Court of
R. v. Hammerbeck
(1992), 40 R.F.L. (3d) 145 (B.C.C.A.) and
R. 
    v. Lena
, [2003] B.C.J. No. 640 (B.C.C.A.) (QL).  In those two 
    cases this Court made plain that, based on Supreme Court of Canada authority, 
    the Court was without jurisdiction to hear appeals in interlocutory criminal 
    matters.  I want to just refer, at this point, to what was said in the case 
    of
Hammerbeck
:

5          
    The Crown has cited a number of cases in its motion, including
R. v. Kerzner
(1991), 3 O.R. (3d) 272, 5 C.R.R. (2d) 369, (sub nom.
R. v. Adamson
) 
    65 C.C.C. (3d) 159 49 O.A.C. 26 (C.A.);
R. v. Lawrence et al.
, [1992] 
    B.C.J. No. 4 (3 January 1992) Vancouver Registry CA014724 (B.C.C.A.);
R. 
    v. M.T.
, [1991] B.C.J. No. 3471 (14 November 1991) Vancouver Registry 
    CA014526 (B.C.C.A.);
R. v. Mills
(1986), 26 C.C.C. (3d); and
R. 
    v. Meltzer
(1989), 49 C.C.C. 452.  In my opinion, it is clear 
    from these authorities that this Court has no jurisdiction to hear this appeal 
    from the order of the trial judge refusing a judicial stay.  The
Meltzer
decision makes this abundantly clear and I quote:

The 
    question facing the court then is:  Does the Charter, because of the importance 
    of the interests it protects, provide an appeal against a refusal of a
Wilson
application for review despite the fact that neither the
Criminal Code
nor any other legislative enactment so provides?  I assume - but 
    do not decide - for the purposes of dealing with this question, that s. 8 
    of the Charter is engaged by the interception of private communications.

The 
    Court went on to say:

I 
    would say at the outset that in my view the Charter does not provide such 
    an appeal.  In argument, the appellant referred to what I said in
Mills v. The Queen
(1986), 26 C.C.C. (3d) 481, at p. 496, 29 D.L.R. 
    (4th) 161, [1986] 1 S.C.R. 863 (S.C.C.):

Again, 
    it must be observed that the Charter is silent on the question of appeals 
    and the conclusion must therefore be that the existing appeal structure must 
    be employed in the resolution of s. 24(1) claims.  Since the Charter 
    has conferred a right to seek a remedy under the provisions of s. 24(1) 
    and since claims for remedy will involve claims alleging the infringement 
    of basic rights and fundamental freedoms, it is essential that an appellate 
    procedure exist.  There is no provision in the
Code
which provides 
    a specific right to appeal against the granting, or the refusal, of a Charter 
    remedy under s. 24(1), but appeals are provided for which involve questions 
    of law and fact.  The Charter, forming part of the fundamental law 
    of Canada, is therefore covered and the refusal of a claim for Charter relief 
    will be appealable by a person aggrieved as a question of law, as will be 
    the granting of such relief by the Crown.  The appeal will follow the normal, 
    established procedure.
When the trial is completed, the appeal may be 
    taken against the decision or verdict reached and the alleged error in respect 
    of the claim for Charter relief will be a ground of appeal
.

(Emphasis added.)

I 
    would, however, add that with the approval of two more of the seven judges 
    sitting upon the appeal, I went on to say in
Mills v. The Queen
, at 
    p. 496:

The 
    question has been raised as to whether there can be something in the nature 
    of an interlocutory appeal in which a claimant for relief under s. 24(1) 
    of the Charter may appeal immediately upon a refusal of his claim and before 
    the trial is completed.  It has long been a settled principle that 
    all criminal appeals are statutory and that there should be no interlocutory 
    appeals in criminal matters.  This principle has been reinforced 
    in our
Criminal Code
(s. 602) prohibiting procedures on appeal 
    beyond those authorized in the
Code
).

The 
    refusal of an application for a remedy or relief based on the Charter may 
    well raise a question of law which could be the basis of an appeal under the
Criminal Code
against conviction or acquittal.  Accepting this principle, 
    however, will not assist the appellants in this case.  They do not 
    seek to appeal against a conviction under the
Criminal Code
appeal 
    provisions.
They seek to launch an interlocutory appeal concerning 
    the admissibility of evidence which may be adduced at a future trial.  There 
    is no statutory basis for such an appeal and the law, as expressed in
Mills 
    v. The Queen, supra
, and s. 602 of the
Criminal Code
, does 
    not permit interlocutory appeals in criminal cases.  I am, accordingly, 
    satisfied that the Court of Appeal was correct in holding that it had no jurisdiction 
    to entertain this interlocutory appeal
.

[Emphasis added.]

[3]

As I said, the case of
Hammerbeck
placed reliance on 
    two Supreme Court of Canada cases, holding there was no jurisdiction for this 
    Court to hear an appeal in an interlocutory matter in criminal cases.  The 
    citations of those cases are:
R. v. Mills
, [1986] 1 S.C.R. 
    863; and
R. v. Meltzer,
[1989] 1 S.C.R. 1764.  In the result, 
    in
Hammerbeck
the Court held it was without jurisdiction to 
    hear the case.  A similar result followed in the more recent case of
R. 
    v. Lena
in 2003.  Here reference should be made to the following passage 
    from that judgment:

7          
    As can be readily seen, each of the eight appeals is interlocutory.  The appellant 
    seems to be seeking some sort of prerogative relief with respect to the issues 
    raised in the notices of appeal.
This court lacks jurisdiction to hear 
    interlocutory appeals in criminal matters and has no power to grant prerogative 
    relief with respect to any aspect of proceedings in the Supreme Court of British 
    Columbia
.

8          
    It should be pointed out, however, that it remains open to the appellant to 
    include any or all of the subject matters of the eight appeals as issues in 
    the conviction appeal or, with respect to the eight appeal, in the intended 
    sentence appeal.

9          
    Since we do not have jurisdiction to entertain these appeals, I would grant 
    the Crowns application and quash all of them.

[Emphasis added.}

[4]

In that case, as Mr. Justice Esson observed, because the proceeding 
    sought to be appealed was an interlocutory one, no appeal lay to this Court 
    at that stage of matters.  The Court was without jurisdiction and, accordingly, 
    the appeal had to be quashed.  That, as I see it, is exactly the situation 
    that is before this Court today in this case at bar.  Based on previous authority, 
    it seems clear to me that this appeal has to be quashed and I would so order.

[5]

FINCH, C.J.B.C.
: I agree.

[6]

DONALD, J.A.
:  I agree.

[7]

FINCH, C.J.B.C.
:  The appeal is quashed for lack of jurisdiction.

The Honourable Mr. Justice Hall


