



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



Duarte v. British Columbia (Attorney General),









2012 BCCA 6




Date: 20120111

Docket:
CA039471

Between:

Captain E.G. da
Costa Duarte

and Sailmaster
Glenn Lusk

Proposed Appellants

And

Attorney General
of British Columbia,
Prothonotary Roger R. Lafreniere (Federal Court of Canada),
Campbell River Harbour Authority (CRHA),
The Board of Directors of the CRHA, Coast Bailiff & Collections,
Shelley Chapelski and Phyllis Titus

Respondents




Before:



The Honourable Mr. Justice Hall





(In Chambers)




On appeal from:  Supreme
Court of British Columbia, October 17, 2011
(
Duarte v. British Columbia (Attorney General)
, Campbell River Registry
37556)




The Proposed Appellants appeared via telephone






Counsel for the Respondent Attorney General:



P. Juk, Q.C.





Counsel for the Respondent R. Lafreniere appeared via
  telephone



R. McLarty





Place and Date of Hearing:



Victoria, British
  Columbia

December 6, 2011





Place and Date of Judgment:



Vancouver, British
  Columbia

January 11, 2012








Reasons for Judgment of the
Honourable

Mr. Justice Hall:

[1]

In this case the proposed appellant, Captain Duarte, swore an
information on December 15, 2010 alleging unlawful conduct by a number of
individuals associated with the Campbell River Harbour Authority.  This
procedure in common parlance is often denoted a private information or prosecution. 
This makes applicable the provisions of the
Criminal Code
, R.S.C. 1985,
c. C-46, ss. 504 and 507.1.  Section 504 provides that a justice
shall receive the information from an informant.

[2]

The issue then arises whether or not process should issue to compel the
attendance of a party alleged to have committed an offence.  This question is
addressed by certain provisions of s. 507.1:

507.1 (1)  A justice who receives an information laid under
section 504, other than an information referred to in subsection 507(1), shall
refer it to a provincial court judge or, in Quebec, a judge of the Court of
Quebec, or to a designated justice, to consider whether to compel the
appearance of the accused on the information.

(2)  A judge or designated justice to whom an information is
referred under subsection (1) and who considers that a case for doing so is
made out shall issue either a summons or warrant for the arrest of the accused
to compel him or her to attend before a justice to answer to a charge of the
offence charged in the information.

(3)  The judge or designated justice may issue a summons or
warrant only if he or she

(a)  has heard and considered the allegations of the
informant and the evidence of witnesses;

(b)  is satisfied that the Attorney General has received a
copy of the information;

(c)  is satisfied that the Attorney General has received
reasonable notice of the hearing under paragraph (a); and

(d)  has given the Attorney General an opportunity to attend
the hearing under paragraph (a) and to cross-examine and call witnesses and to
present any relevant evidence at the hearing.

(4)  The Attorney General may appear at the hearing held
under paragraph (3)(a) without being deemed to intervene in the proceeding.

...

(10)  In this section,
designated justice means a justice designated for the purpose by the chief
judge of the provincial court having jurisdiction in the matter or, in Quebec,
a justice designated by the chief judge of the Court of Quebec.

[3]

I think it could fairly be observed that the object and purpose of the
stipulated 507.1 process is to filter out proceedings where there may be
justifiable dubiety about the substance of allegations.  In the present case,
it appears that Captain Duarte considered that there was unwarranted delay by
Provincial Court officials in scheduling the requisite hearing.  Because of
this, he sought on September 14, 2011 to invoke the assistance of the
Supreme Court of British Columbia.
Inter alia
, Captain Duarte sought
orders in the nature of
Certiorari
or
Mandamus
requiring the
Supreme Court to perform the functions mentioned in s. 507.1.  As can be
seen from the above quoted portions of s. 507.1, these functions are in
all provinces, save Quebec, to be exercised by a Provincial Court judge.  It
appears that in addition to the above noted relief being sought in Supreme
Court, Captain Duarte was also seeking an order that the Supreme Court assume
jurisdiction over a Federal Court proceeding.  On September 20, 2011, Captain
Duarte and Sailmaster Glenn Lusk filed a petition in Supreme Court seeking
orders of the same general nature as sought in the original filings in Supreme
Court and additionally, advanced a claim for financial restitution.

[4]

On October 17, 2011, after a hearing in Supreme Court, Romilly J.
made the following order:

THIS COURT ORDERS THAT the
Supreme Court of British Columbia declines jurisdiction on these matters
until
there has been an adjudication under s. 507.1 of the
Criminal Code
in respect of information No. 37556 (Notice of Appeal, para. 7 p. 3)
[emphasis added].

[5]

By a filing in this Court on November 9, Captain Duarte and Sailmaster
Lusk sought to appeal from the order of Romilly J.  On December 6, 2011, I
heard an application brought on behalf of the Attorney General of British
Columbia seeking dismissal of the proposed proceeding in this Court.  At this
proceeding, I heard submissions from Mr. Juk, counsel for the Attorney
General, from Captain Duarte, and Sailmaster Lusk (present by telephone) and from
Mr. McLarty, counsel for Prothonotary Lafreniere of the Federal Court
(also present by telephone).

[6]

I consider that the order sought to be appealed is correctly
characterized by Mr. Juk as an interlocutory order made by a Supreme Court
judge.  Such an order requires the granting of leave by a justice of this Court
before any appeal may proceed.  The submission by counsel for the Attorney
General that this Court, a court of statutory jurisdiction, is without
jurisdiction to hear the proposed appeal is probably correct.  Appeals of
interlocutory rulings in criminal proceedings are not normally available. 
However, more fundamentally, I cannot envision that a division of this Court
could or would grant any relief on the proposed appeal from the interlocutory
decision of Romilly J.  Therefore this is not a case in which leave to
appeal ought to be granted to the proposed appellants and I therefore decline
to make an order granting leave to appeal.

[7]

Before leaving the case, I observe that it is to be hoped that this
matter can be addressed (as provided for in the
Code
) before the Provincial
Court in a timely fashion.  Perhaps Mr. Juk can take such steps as he may
consider useful to see that there is no undue delay in having this matter
addressed in the proper forum.

The
Honourable Mr. Justice Hall


