



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



R. v. Boutilier,









2016 BCCA 24




Date: 20160121

Docket No.: CA42891

Between:

Regina

Appellant

And

Donald Joseph
Boutilier

Respondent






Before:



The Honourable Madam Justice Neilson

The Honourable Mr. Justice Groberman

The Honourable Madam Justice Fenlon




On appeal from:  An
order of the Supreme Court of British Columbia, dated November 21, 2014
and May 29, 2015 (
R. v. Boutilier
, 2015 BCSC 901),
Vancouver Docket No. 25686).




Counsel for the Appellant:



M. Brundrett
R. Garson





Counsel for the Respondent:



E. Purtzki
G. Botting





Place and Date of Hearing:



Vancouver, British
  Columbia

September 23, 2015





Place and Date of Judgment:



Vancouver, British
  Columbia

January 21, 2016









Written Reasons by:





The Honourable Madam Justice Neilson





Concurring Reasons by:
(p. 20, para. 53)





The Honourable Mr. Justice
  Groberman





Concurring Reasons by:
(p. 30, para. 85)





The Honourable Madam Justice Fenlon








Summary:

The respondents application
to quash this Crown appeal on the basis that there is no statutory right to
appeal is dismissed. Neilson J.A. holds s. 759(2) entitles the Crown to
appeal a final decision made in dangerous offender proceedings under Part XXIV
of the Criminal Code, including a final decision holding that s. 753(1) of
the Code is constitutionally invalid. Groberman J.A., concurring, concludes as
well that the Crown would in any event be entitled to appeal the declaration of
constitutional invalidity through civil proceedings under the Court of Appeal
Act. Fenlon J.A. concurs with Neilson J.A., and acknowledges the approach of
Groberman J.A. but declines to express an opinion on it as this is unnecessary
for the disposition of the appeal.


Reasons for Judgment of the Honourable
Madam Justice Neilson:

[1]

On May 29, 2015, in proceedings taken by the appellant Crown to have the
respondent, Donald Joseph Boutilier, designated a dangerous offender under Part
XXIV of the
Criminal Code
, R.S.C. c. C-46, a Supreme Court judge
declared s. 753(1) in that Part to be constitutionally invalid. He suspended
the declaration for a year, however, refused to grant Mr. Boutilier a
constitutional exemption, designated him a dangerous offender, and sentenced
him to indeterminate incarceration.

[2]

The Crown filed a notice of appeal of the declaration of constitutional
invalidity under s. 759(2) of the
Code
, which enacts rights of
appeal under Part XXIV. The respondent brings this application to quash the Crowns
appeal, arguing that s. 759(2) does not provide a statutory right of appeal.

Background

[3]

On May 28, 2012, Mr. Boutilier pleaded guilty to six offences
arising from a robbery of a drugstore in Vancouver on April 11, 2010. The Crown
then commenced proceedings to have him sentenced as a dangerous offender under
Part XXIV of the
Code
.

[4]

Part XXIV creates a unique sentencing scheme that engages a series of
sequential steps due to the potential severity of its consequences. The Crown
must, first, establish that the offender has committed a serious personal injury
offence, and then apply to the court for a remand for assessment. If successful,
in these steps, the Crown then applies under s. 753(1) to have the
offender designated a dangerous offender. If this designation is achieved, the
Crown seeks imposition of a sentence of detention for an indeterminate period
under s. 753(4), which will be granted unless the court concludes, in
accord with s. 753(4.1), that a lesser measure will adequately protect the
public. The parts of this legislative scheme relevant to this appeal state:

753.(1) On application made under this Part after an
assessment report is filed under subsection 752.1(2), the court shall find the
offender to be a dangerous offender if it is satisfied

(a)  that the offence for which the
offender has been convicted is a serious personal injury offence described in
paragraph (a) of the definition of that expression in section 752 and the
offender constitutes a threat to the life, safety or physical or mental
well-being of other persons on the basis of evidence establishing

(i)  a pattern of repetitive
behaviour by the offender, of which the offence for which he or she has been
convicted forms a part, showing a failure to restrain his or her behaviour and
a likelihood of causing death or injury to other persons, or inflicting severe
psychological damage on other persons, through failure in the future to
restrain his or her behaviour,



(4.1)  The court shall impose a
sentence of detention in a penitentiary for an indeterminate period unless it
is satisfied by the evidence adduced during the hearing of the application that
there is a reasonable expectation that a lesser measure under paragraph (4)(
b
)
or (
c
) will adequately protect the public against the commission by the
offender of murder or a serious personal injury offence.

[5]

These provisions were enacted as amendments to Part XXIV in 2008: S.C.
2008, c. 6, s. 51. They removed the courts discretion under s. 753(1)
to decline to declare an offender to be a dangerous offender and to instead
find him a long-term offender if there was a reasonable possibility of
eventually controlling the risk he presented to the community. Sentencing
judges are instead required to designate offenders as dangerous if they simply meet
the criteria in s. 753(1). Consideration of amenability to future
treatment is deferred to the penalty stage under s. 753(4.1).

[6]

At the conclusion of Mr. Boutiliers dangerous offender hearing, he
filed a Notice of Constitutional Question under the
Constitutional Question
Act
, R.S.B.C. 1996, c. 68, s. 8. This challenged the
constitutionality of several provisions of Part XXIV, including ss. 753(1)
and 753(4.1), on the basis they violated his rights under ss. 7 and 12 of
the
Canadian Charter of Rights and Freedoms
, Part 1 of the
Constitution
Act, 1982
, being Schedule B to the
Canada Act 1982
(U.K.), 1982,
c. 11.

[7]

On November 21, 2014, the sentencing judge found s. 753(1) was
constitutionally overbroad and therefore violated Mr. Boutiliers rights
under s. 7 of the
Charter
because it excluded consideration of an
offenders future treatment prospects at the designation stage. The balance of
the constitutional challenge was dismissed: 2014 BCSC 2187. The sentencing
judge explained his decision as follows:

[93]      A failure to consider the treatment prospects of an
offender impermissibly captures and designates as dangerous, some individuals
who simply are not part of the legitimate or intended target population of Part
XXIV. ...

...

[95]      This prospective
analysis under the 2008 regime, however, only considers retrospective
evidence. There is no proper basis to limit a prospective analysis whose
conclusions designate and label a person for life, in this way. The object of
Part XXIV is not to address criminality. Its object is to address a particular
type of dangerous criminal whose behaviour in the future is likely to cause
harm to the public. Section 753(1), read in the context of the 2008 regime,
requires a judge to close his or her eyes to prospective evidence that is
relevant to the s. 753(1) criteria of dangerousness when making the
designation that the section mandates. As such it gives rise to some
designations that are not consonant with the purpose of Part XXIV and it is
overly broad. There is then no rational connection between the purposes of the
law and
some
, but not all, of its impact;
Bedford
at para. 112.

[8]

The sentencing judge then held a hearing directed to whether the
constitutional violation could be justified under s. 1 of the
Charter
and,
if not, to determine an appropriate remedy. On May 29, 2015, he delivered
reasons holding that the s. 7 infringement could not be saved under
s. 1, and declared s. 753(1) to be of no force and effect. He, however,
suspended the declaration of constitutional invalidity for one year.

He
declined Mr. Boutiliers application for a personal constitutional
exemption and applied the impugned provision to find him a dangerous offender,
as the evidence failed to support a reasonable expectation that a lesser
sentence would adequately protect the public. The judge then imposed an
indeterminate sentence: 2015 BCSC 901.

[9]

On June 25, 2015, the Crown filed a notice of appeal of the declaration
of constitutional invalidity under s. 759(2) of Part XXIV. Section 759 enacts
the rights of appeal under Part XXIV and reads in its entirety:

(1)  An offender who is found to be a dangerous offender or a
long-term offender may appeal to the court of appeal from a decision made under
this Part on any ground of law or fact or mixed law and fact.

(2)  The Attorney General may appeal to the court of appeal
from a decision made under this Part on any ground of law.

(3)  The court of appeal may

(a)  allow the appeal and

(i)  find that an offender is or is
not a dangerous offender or a long-term offender or impose a sentence that may
be imposed or an order that may be made by the trial court under this Part, or

(ii)  order a new hearing, with any
directions that the court considers appropriate; or

(b)  dismiss the appeal.

[10]

On the same day, Mr. Boutilier filed a notice of appeal, by which he
alleges the sentencing judge erred in designating him a dangerous offender and
imposing an indeterminate sentence, and in holding that s. 753(4.1) of the
Code
did not violate s. 12 of the
Charter
.

[11]

On August 27, 2015, Mr. Boutilier brought this application to
quash.

[12]

On August 28, 2015, the Crown, as a precautionary measure, filed an
application for leave to appeal the sentencing judges declaration of
constitutional invalidity directly to the Supreme Court of Canada, pursuant to
s. 40(1) of the
Supreme Court Act
, R.S.C. 1985, c. S-26. This provision
states:

40.(1)  Subject to subsection
(3), an appeal lies to the Supreme Court from any final or other judgment of
the Federal Court of Appeal or of the highest court of final resort in a
province, or a judge thereof, in which judgment can be had in the particular
case sought to be appealed to the Supreme Court, whether or not leave to appeal
to the Supreme Court has been refused by any other court, where, with respect
to the particular case sought to be appealed, the Supreme Court is of the
opinion that any question involved therein is, by reason of its public
importance or the importance of any issue of law or any issue of mixed law and
fact involved in that question, one that ought to be decided by the Supreme
Court or is, for any other reason, of such a nature or significance as to
warrant decision by it, and leave to appeal from that judgment is accordingly
granted by the Supreme Court.

Issues on Appeal

[13]

Mr. Boutiliers application raises two issues:

a)

Is the Crown
entitled to appeal the declaration of constitutional invalidity when it succeeded
in obtaining its ultimate objective of having Mr. Boutilier designated a
dangerous offender under Part XXIV?

b)

Does s. 759(2)
provide a statutory right of appeal from the declaration of constitutional
invalidity?

Analysis

[14]

It is common ground that this Courts jurisdiction to entertain appeals
is derived entirely from statute. The central issue before us is thus a matter
of statutory interpretation, resting on the proper construction of the Crowns
right of appeal under s. 759(2). The analysis is governed by the modern
approach to statutory interpretation, developed in E.A. Driedger
,
Construction of Statutes,
2nd ed. (Toronto: Butterworths, 1983). The
Supreme Court of Canada has frequently endorsed this approach, and approved its
application in the context of dangerous offender proceedings in
R. v. Steele
,
2014 SCC 61 at para. 23:

the words of legislation must be
read in their entire context and in their grammatical and ordinary sense
harmoniously with the scheme of the Act, the object of the Act, and the
intention of Parliament.

Mr. Boutiliers Position

[15]

Mr. Boutilier argues the Crown has no statutory right to appeal the
declaration of constitutional invalidity for two reasons. First, the
declaration is not a decision made under Part XXIV of the
Code
. It is
instead a decision made under s. 52(1) of the
Constitution Act
,
1982
.
Second, the Crown succeeded in obtaining the ultimate disposition it sought
under Part XXIV: his designation as a dangerous offender and the imposition of
an indeterminate sentence, and is therefore precluded from appealing the
constitutional ruling. Citing
R. v. Barnes
, [1991] 1 S.C.R. 449

at
466, Mr. Boutilier says s. 759(2) does not permit the Crown to appeal
just because the interlocutory orders of the sentencing judge gave it less than
what it requested.

[16]

Mr. Boutilier maintains that the Crowns avenues of appeal are
limited to either raising the constitutional ruling as a responsive argument in
the factum it will file in his appeal, or pursuing its application for leave to
appeal the issue directly to the Supreme Court of Canada under s. 40(1) of
the
Supreme Court Act
. In support, he points to the dual proceedings
approach developed in
R. v. Laba
, [1994] 3 S.C.R. 965, and
R. v.
Keegstra
, [1995] 2 S.C.R. 381.

[17]

In
Laba
, the accused were charged with conspiracy to sell or
purchase stolen minerals containing precious metals under s. 394(1)(
b
)
of the
Code
. Prior to trial, they brought a constitutional challenge to
this provision, alleging it violated s. 11(
d
) of the
Charter
because
it contained a reverse onus clause. The trial judge agreed, declared s. 394(1)(
b
)
to be of no force or effect, and granted a stay of proceedings. In its appeal
of that ruling to the Ontario Court of Appeal, the Crown conceded the clause
infringed s. 11(
d
) but argued it could be saved under s. 1 of
the
Charter
. The Court disagreed, but nevertheless allowed the appeal to
the extent of striking only the reverse onus clause, and holding the remainder
of s. 394(1)(
b
)

was valid. When the Crown sought to appeal
this ruling to the Supreme Court of Canada, the respondents argued the Court of
Appeal had effectively allowed the Crowns appeal by implicitly removing the
stay granted by the trial judge, and the Supreme Court therefore had no jurisdiction
to hear the appeal because s. 693(1)(
b
) of the
Code
limited
the Crowns right of appeal to that Court to appellate decisions that have set
aside a conviction or dismissed a Crown appeal.

[18]

Lamer C.J., writing for the majority, observed the specific issue raised
the more general issue of appellate jurisdiction over, and proper conduct of,
challenges under s. 52 of the
Constitution Act
,
1982
. At
977-78 he stated:

My analysis will be grounded
in the following premise: when the constitutionality of a law is challenged in
the context of criminal proceedings, there are effectively two proceedings 
the proceedings directed at a determination of culpability and the proceedings
directed at a determination of constitutionality. They will usually proceed
together but may, on occasion, proceed separately. These two proceedings will
usually, but need not always, be governed by the same rules and practices.

[19]

Referring to
Barnes
, the Chief Justice affirmed that an appeal is
allowed if the order is reversed, even if the reasons for the reversal are not
what the appellant would have liked. He agreed that, because the Court of
Appeal had implicitly lifted the trial judges stay, the Crowns appeal had
been allowed and the Supreme Court therefore had no jurisdiction to hear a
Crown appeal of the constitutional ruling under s. 693(1)(
b
). He
went on, however, to decide that s. 40(1) of the
Supreme Court Act
did provide jurisdiction for that Court to grant leave to appeal a
constitutional ruling that could not be piggybacked onto
Criminal Code
proceedings. In his view, to find otherwise would be absurd because whenever a
ruling of unconstitutionality coincided with a conviction the impugned
provision would remain inoperative until circumstances in a future case
combined to raise the constitutional issue in a context that permitted
appellate review. At 984, Lamer C.J. summarized the basis for this dual
proceedings approach:

To me, such a consequence is
absurd. First, the constitutionality of a law is left dependent upon the
resolution of an issue completely unrelated to constitutionality, i.e., the
guilt or innocence of the accused and upon his or her decision to appeal a
conviction. Second, a law can be struck down by a Provincial or Superior Court
judge and then left to hang there inoperative until some time in the future
when another case on point happens to come before another judge and happens to
result in a verdict that provides for an avenue of appeal through the
Criminal
Code
. Just as an accused is entitled to his or her day in court, so too is
the legislature. The legislature does not properly get this day in court if its
ability to get to court on the issue of the constitutionality of a law is
dependent upon the contingency of a particular finding of guilt or innocence
coinciding with a
Criminal Code
avenue of appeal.

[20]

In
Keegstra
, the Supreme Court affirmed the dual proceedings
approach, and held that it may apply to an accused as well as the Crown. Mr. Keegstra
had been convicted of unlawfully promoting hatred against an identifiable group,
contrary to then s. 281.2(2) of the
Code
. The majority judgment of
the Alberta Court of Appeal allowed his appeal and directed a new trial. The
Crown had an appeal to the Supreme Court as of right under s. 693(1)(
a
)
of the
Code
, due to the dissenting judgment. Mr. Keegstra applied
for leave to appeal to that Court on grounds that included a constitutional
argument he had raised before the Court of Appeal. The Crown filed a motion to
quash his application, arguing the Court had no jurisdiction to hear it.

[21]

Chief Justice Lamer, again writing for the majority, disagreed. He
reiterated his analysis in
Laba
and, at 390-95, determined that the
dual proceedings approach was available to both parties. Thus, offenders who
sought to appeal a constitutional ruling to the Supreme Court that was not
appealable under the
Code
could avail themselves of s. 40(1). He
summarized his views at 392:

Accordingly, where the highest
court of final resort of a province has made a ruling on the constitutionality
of a
Criminal Code
provision, either party may seek leave to appeal that
ruling to this Court, regardless of whether a finding of culpability
accompanied the ruling and, if there was an accompanying finding of
culpability, regardless of whether that finding is appealable as of right or on
granting of leave. Of course, the party choosing to seek leave to appeal a
ruling of constitutionality will be the party whose interests are not served by
the ruling on constitutionality below. Nonetheless, this dual proceedings
approach insures that leave can always be sought to appeal rulings on
constitutionality whether or not the party seeking leave won or lost in the
ruling on culpability in the court below.

[22]

Mr. Boutilier submits that the application of the dual
proceedings approach here must lead to a conclusion that the Crown has no
right to appeal the declaration of constitutional invalidity to this Court, and
must instead seek leave to appeal this order to the Supreme Court under
s. 40(1).

The Crowns Position

[23]

The Crown responds that the scheme and context of Part XXIV are clearly
distinguishable from the statutory framework that necessitated development of
the dual proceedings approach in
Laba
and
Keegstra
. Those cases
were decided under the restrictive wording of ss. 674, 691, and 693 of the
Code
, which limit appeals to the Supreme Court from provincial appellate
courts. The Crown says that to prevent the absurdity of having those
restrictions preclude appeals of what it refers to as interlocutory
constitutional rulings, the Supreme Court analytically divorced the
constitutional determination from the proceeding on culpability, and
characterized the former as an independent proceeding under s. 40 of the
Supreme
Court Act
. The Crown asserts that the dual proceedings approach was thus
not developed to remove such interlocutory constitutional issues from the
appeal provisions of the
Code
, but to ensure that such issues would not
be rendered unappealable by those provisions:
Keegstra
at 402.

[24]

The Crown contends that, by contrast, it seeks to appeal the declaration
of constitutional invalidity to a provincial appellate court under the broad
terms of s. 759(2). It argues this declaration was integrally linked to Mr. Boutiliers
culpability under the
Criminal Code
. His constitutional challenge was
brought during his dangerous offender hearing under Part XXIV for relief
collateral to that criminal proceeding. The Crown points out that s. 759(2)
gives this Court jurisdiction to hear Crown appeals from any decision made
under Part XXIV on a point of law, and says the ordinary and grammatical
meaning of that phrase must encompass a ruling that a core provision of that
Part is constitutionally invalid. The declaration made by the sentencing judge
is fundamental to the legitimacy and application of all future dangerous
offender proceedings in this province. The Crown argues this is a matter of
undoubted public importance, and calls for review by an appellate court at the
earliest opportunity. It maintains this interpretation of s. 759(2) is
consistent with the language and context of the provision, parliamentary
intent, and common sense.

[25]

The Crown further submits that the expansive right of appeal provided by
s. 759(2) is not confined to final decisions, or to decisions that are
adverse to the appellant. It says that it is therefore unnecessary to adopt the
dual proceedings approach and resort to s. 40 of the
Supreme Court
Act
to appeal the declaration of constitutional invalidity.

[26]

In support of its position, the Crown points to dictionaries that define
decision expansively, as including rulings, orders, judgments, findings, and
determinations:
Blacks Law Dictionary
, 10th ed. 2014;
Dictionary of
Canadian Law
, 3d ed. 2004. As well, it contends the word under does not
always mean by the authority of, but is routinely used more broadly to mean
arising out of or with reference to:
Dictionary of Canadian Law
, 3d
ed. 2004.

[27]

The Crown also points to the French text of s. 759(2), which grants
the Crown a right of appeal de toute d
é
cision
... sur toute question de droit. It maintains this defines appellate
jurisdiction even more broadly than the English text, permitting an appeal of
any decision.

[28]

As well, the Crown contends the multiplicity of remedial powers provided
by s. 759(3) supports its position. It submits these are not restricted to
final orders in a dangerous offender proceeding, and are broad enough to permit
appellate consideration of the validity of a constitutional ruling.

[29]

As an indication of the breadth of appeal rights under Part XXIV, the
Crown cites a series of cases, decided both before and after the 2008
amendments, which it says demonstrate that appellate courts have often heard
appeals of ancillary or preliminary decisions made in the course of
dangerous offender proceedings:
Steele
;
R. v. Mastronardi
, 2015
BCCA 338;
R. v. Fulton
, 2006 SKCA 115;
R. v. J.J.M.
, 2006 NBCA
39;
R. v. C.L.S.
(1999), 43 O.R. (3d) 143, 133 C.C.C. (3d) 467 (C.A.).

[30]

The Crown asserts it is undisputed that the dominant legislative purpose
of Part XXIV is to protect the public from offenders who have demonstrated a
past propensity to perpetrate violent or sexual crimes, and so present a real
risk of future harm:
Steele
at para. 29. While such proceedings
have traditionally targeted only a small number of offenders, the 2008
amendments were directed at expanding the population that will fall under Part
XXIV:
R. v. Szostak
, 2014 ONCA 15 at paras. 52-54.

[31]

The Crown also maintains the legislative evolution of s. 759(2) is
indicative of an expansive legislative intent. Between 1953 and 2008, Crown
appeals in preventive detention or dangerous offender proceedings were only
permitted against the dismissal of an application for an order under this
Part. It submits the broader wording in s. 759(2) as amended demonstrates
an intent to extend the right of appeal to any decision made under Part XXIV. The
Crown argues that a more restrictive interpretation of s. 759(2) would be
inconsistent with Parliaments intent to minimize the risk of harm presented by
identifiably dangerous criminals, and the provision instead requires a fair,
large and liberal construction and interpretation of appeal rights, in accord
with s. 12 of the
Interpretation Act
, R.S.C. 1985, c. I-21.

[32]

Finally, the Crown relies on the well-established principle that the
legislature does not intend absurd consequences that produce unreasonable or
illogical results:
Rizzo & Rizzo Shoes Ltd. (Re)
, [1998] 1 S.C.R. 27
at 43. It says Parliament could not have intended to deprive it of a direct
route to a provincial appellate court to appeal a declaration of constitutional
invalidity with significant ramifications for public safety. Nor could it have
been the legislatures intent to bifurcate appeal proceedings under Part XXIV, and
require the constitutional issues raised by the Crown and by Mr. Boutilier
to be heard at different times by different courts. The Crown submits such an interpretation
is unreasonable, impractical and inefficient. The absurdity of this is evident
from the fact that it would have had a clear right to appeal the declaration of
constitutional invalidity but for the sentencing judges decision to temporarily
suspend it. The Crown maintains it defies common sense that this Courts
jurisdiction to hear its appeal should be lost due to this ancillary aspect of
the judges order.

[33]

Although the Crown does not rely on s. 784(1) of the
Code
,
it cites two cases decided under that provision in support of its arguments:
R.
v. Ciarniello
(2006), 81 O.R. (3d) 561 at paras. 23-25, 211 C.C.C.
(3d) 540 (C.A.) and
Reference re Remuneration of Judges of the Provincial
Court of Prince Edward Island
, [1997] 3 S.C.R. 3 at 123-26. Section 784(1)
provides:

An appeal lies to the court of appeal
from a decision granting or refusing the relief sought in proceedings by way of
mandamus
,
certiorari
or prohibition.

[34]

In
Ciarniello
, the applicant successfully challenged a search
warrant by way of a motion for
certiorari
. The judge found Mr. Ciarniellos
rights under s. 8 of the
Charter
had been violated, but refused to give
him costs as a remedy under s. 24. When he sought to appeal that order, the
Crown argued the Ontario Court of Appeal did not have statutory jurisdiction to
hear the appeal, and the appellants only remedy lay under s. 40(1) of the
Supreme Court Act
. The Court disagreed, taking the view that the
interests of justice required a broad interpretation of s. 784(1) to avoid
the fragmentation of appeal rights:

[24]      We must respect the
principle relied upon by the Crown that this court has no jurisdiction to
entertain an appeal that is not authorized by statute. However, that principle
does not require us to interpret the appeal rights that Parliament has given in
an unduly restrictive or technical manner. It is in the interests of the fair
and efficient administration of justice that all appeals relating to the same
issue and arising out of the same proceeding be brought before the same court
at the same time. The Crowns submission would lead to this court dealing with
an appeal from the grant or refusal of
certiorari
, but require a
separate application for leave to appeal to the Supreme Court of Canada with
respect to the grant or refusal of any related relief. We would have to live
with that situation if the statutory language compelled us to do so. However,
where we are asked to interpret statutory language capable of bearing broader
meaning, we should adopt an interpretation that avoids the fragmentation of
appeal rights.

[35]

The relevant portion of the
Reference
addressed the decision of
the Alberta Court of Appeal in
R. v. Campbell
(1995), 169 A.R. 178, 100
C.C.C. (3d) 167 (C.A.). The trial judge had struck portions of the
Provincial
Court Judges Act
, S.A. 1981, c. P-20.1 as infringing s. 11(d) of
the
Charter
, but then found this cured the
Charter
infringement. When
the Crown sought to appeal the declaration of constitutional invalidity, two members
of the Court held there was no jurisdiction to hear the appeal as s. 784(1)
did not clearly and specifically provide a right of appeal to a successful
party. The third member dissented, holding that a liberal interpretation of
s. 784(1) allowed an appeal from any relief granted. In the Supreme Court,
Lamer C.J., writing for the majority, agreed with the dissenting judgment and
held the Crown had a statutory right of appeal. He stated:

[214]    I find the arguments
advanced in support of the view that s. 784(1) was unavailable to the
Crown to be unconvincing. First, it is not clear to me that only unsuccessful
parties can avail themselves of s. 784(1). But even if this limitation
applies, the Court of Appeal had jurisdiction. Although the Crown may have been
successful in its efforts to commence and continue the trials against the
respondents, it lost on the underlying finding of unconstitutionality. A series
of declarations was made which had the effect of striking down numerous
provisions found in legislation and regulations. It was, at most, a Pyrrhic
victory for the Crown.

[36]

The Crown argues that it similarly obtained a Pyrrhic victory in this
case, and should therefore be found to have a right to appeal the declaration
of constitutional invalidity under s. 759(2).

Discussion

[37]

I agree with Mr. Boutilier that the Crown is entitled to raise the constitutional
validity of s. 753(1) in its capacity as the respondent to his appeal. A
respondent may raise any argument that supports the order of the court below:
Keegstra
at 396. I see no reason why this would not apply to the Crowns
constitutional argument here. A reversal of the sentencing judges declaration
of constitutional invalidity would lead to the same result: the imposition of
an indeterminate sentence on Mr. Boutilier as a dangerous offender. This option
is unsatisfactory, however, as the Crowns right of appeal remains at the mercy
of Mr. Boutilier. Should he abandon his appeal, the Crowns appeal will
also come to an end.

[38]

It is common ground that the Crown may avail itself of s. 40(1) of
the
Supreme Court Act
and the dual procedure approach if it has no
other avenue to appeal the declaration of constitutional invalidity. This too
is unsatisfactory from the Crowns perspective, however, as there is no
certainty it will obtain leave to appeal. As well,

the inconvenience and
inefficiency of bifurcating the parties appeals is evident.

[39]

The Crowns argument that s. 759(2) provides a direct right of appeal
to this Court is thus pragmatically attractive. There is a significant public
interest in having the appeals of both parties constitutional issues heard as
expeditiously as possible, at the same time and by the same court. These
considerations cannot be determinative, however, in the absence of a clear
statutory right of appeal.

[40]

I agree with the Crown that there are significant distinctions between
the statutory framework that guided the analysis in
Laba
and
Keegstra
and that under consideration here. Those cases dealt with appeals from a
provincial appellate court to the Supreme Court of Canada, which are confined
by the restrictive wording of ss. 674, 691, and 693 of the
Code
. These
provisions have no application here. The Crown seeks to appeal to a provincial
appellate court, and the parties rights to appeal decisions made under Part
XXIV are governed by s. 759. The questions before us are, first, whether
the Crown may appeal an adverse constitutional ruling when it achieved its
ultimate goal of having Mr. Boutilier designated a dangerous offender and,
second, whether s. 759(2) provides a statutory right to appeal the
declaration of constitutional invalidity. The dual proceedings approach will
only become relevant if one or both of these questions are answered in the
negative.

1.       Is
the Crown entitled to appeal the declaration of constitutional invalidity when
it succeeded in obtaining its ultimate objective of having Mr. Boutilier
designated a dangerous offender under Part XXIV?

[41]

Mr. Boutilier argues that the declaration of constitutional
invalidity was an interlocutory order as it did not finally determine the
dangerous offender proceeding. Relying on
Barnes
, he maintains that the
broad construction of s. 759(2) advocated by the Crown thus meets
opposition from two related and longstanding principles. First, absent clear
statutory language to the contrary, there are no interlocutory appeals in
criminal matters. Second, only losing parties have a right of appeal.

[42]

I agree that s. 759(2) cannot be construed in a manner that
abrogates these principles. The rule against interlocutory appeals is rooted in
important policy concerns. Such appeals would fragment and delay proceedings,
and potentially cause injustice by determining issues that should be left to
the trial judge. As well, a party aggrieved by an interlocutory ruling may
ultimately obtain a favourable result at the end of the proceeding, which
renders the earlier ruling moot. The established practice is therefore that a
party dissatisfied with an interlocutory ruling must wait to challenge it until
the trial is concluded and, only if ultimately unsuccessful, may raise the
unfavourable ruling as a ground of appeal:
R. v. Johnson
(1991), 3 O.R.
(3d) 49 at 54-55, 64 C.C.C. (3d) 20 (C.A.);
R. v. Sears
, 2014 SKCA 72 at
para. 5;
R. v. Black
, 2011 ABCA 349 at para. 20;
Barnes
at 466.

[43]

I am unable to agree, however, that the declaration of constitutional
invalidity was an interlocutory order. In
Laba
at 977-78, Chief Justice
Lamer outlined the analysis to be applied to criminal cases in which
constitutional challenges under s. 52 of the
Constitution Act, 1982
are
brought:

My analysis will be grounded in
the following premise: when the constitutionality of a law is challenged in the
context of criminal proceedings, there are effectively two proceedings  the
proceedings directed at a determination of culpability and the proceedings
directed at a determination of constitutionality. They will usually proceed
together but may, on occasion, proceed separately. These two proceedings will
usually, but need not always, be governed by the same rules and practices.

[44]

In
Keegstra
at 391, Lamer C.J.C. after quoting from
Laba
added:

Even when the determinations of
culpability and constitutionality arise in the same proceeding, the two rulings
are separate and distinct.

[45]

To suggest that the declaration of unconstitutionality made by the
sentencing judge was an interlocutory order is to ignore the conceptual
framework mandated by the Supreme Court of Canada. This case may be analyzed as
arising out of what were effectively two proceedings in the court below: a
proceeding directed at the determination of whether Mr. Boutilier is a
dangerous offender and a proceeding directed at the constitutionality of
provisions of Part XXIV of the
Criminal Code
. Conceptually, the declaration
of constitutional invalidity granted by the judge was not an interlocutory
ruling in the dangerous offender proceeding. Rather, it was a final order in
the proceeding directed at the constitutionality of s. 753(1), binding on
the Crown and on other trial courts of this province.

[46]

A similar analytical flaw pervades Mr. Boutiliers contention that
the Crown is precluded from appealing because it was successful in the court
below. The Crown was successful in the proceedings to have Mr. Boutilier
declared a dangerous offender. It was, however, unsuccessful in defeating Mr. Boutiliers
constitutional challenge.

[47]

This approach is apparent in the constitutional declarations that were
made in
Laba
and
Keegstra
. These were final orders made in the
constitutional proceeding. The bar to appealing them was not related to a
suggestion that they were interlocutory in nature, but arose from the
restrictions on appeals to the Supreme Court of Canada enacted by ss. 691
and 693 of the
Code
. These provisions have no application here. Instead,
appeal rights under Part XXIV are governed by the broader terms of s. 759.
The question is therefore whether the final order of constitutional invalidity
is a decision made under this Part, thereby granting the Crown a right of
appeal under s. 759(2).

2.       Does
s. 759(2) provide a statutory right of appeal from the declaration of
constitutional invalidity?

[48]

Mr. Boutilier is correct that, since 1982, s. 52(1) of the
Constitution
Act, 1982
has provided the express basis for judicial review of legislation
in Canada for consistency with the Constitution. I am not persuaded, however,
that this removes constitutional determinations from the legal context in which
they are made. The question of constitutional invalidity inheres in the
impugned legislation itself. In
Nova Scotia (Workers Compensation Board) v.
Martin
, 2003 SCC 54, a decision that considered whether an administrative
tribunal had jurisdiction to apply the
Charter
, Justice Gonthier,
writing for the Court, expressed this view as follows:

[28]      First, and most importantly, the Constitution is,
under s. 52(1) of the Constitution Act, 1982, the supreme law of Canada,
and any law that is inconsistent with the provisions of the Constitution is, to
the extent of the inconsistency, of no force or effect.
The invalidity of a
legislative provision inconsistent with the Charter does not arise from the
fact of its being declared unconstitutional by a court, but from the operation
of s. 52(1). Thus, in principle, such a provision is invalid from the
moment it is enacted, and a judicial declaration to this effect is but one
remedy amongst others to protect those whom it adversely affects. In that
sense, by virtue of s. 52(1), the question of constitutional validity
inheres in every legislative enactment
. Courts may not apply invalid laws,
and the same obligation applies to every level and branch of government,
including the administrative organs of the state. Obviously, it cannot be the
case that every government official has to consider and decide for herself the
constitutional validity of every provision she is called upon to apply. If,
however, she is endowed with the power to consider questions of law relating to
a provision, that power will normally extend to assessing the constitutional
validity of that provision. This is because
the consistency of a provision
with the Constitution is a question of law arising under that provision. It is,
indeed, the most fundamental question of law one could conceive, as it will
determine whether the enactment is in fact valid law, and thus whether it ought
to be interpreted and applied as such or disregarded
.

[Emphasis
added.]

[49]

An assessment of constitutional validity is thus necessarily and
integrally related to the impugned provision and its legislative context. This proceeding
was initiated and prosecuted under Part XXIV of the
Criminal Code
. Section
753(1), the provision under review, lies at the core of Part XXIV, and its
constitutional validity is fundamental to the legitimacy of dangerous offender
proceedings. Despite the two-pronged analysis described in
Laba
, the
underlying proceeding in this case remains a proceeding under Part XXIV of the
Criminal
Code
.

[50]

I subscribe to the view of the Court of Appeal in
Ciarniello
that
appeal rights should not be interpreted in an unduly restrictive or technical
manner, and that it is in the interests of justice to have all appeals
relating to the same issue and proceeding brought at the same time before the
same court, to the extent that the statutory language permits this.

[51]

In that context, I acknowledge that the phrase a decision under this
Part in s. 759(2) is open to different interpretations, but I am
persuaded that it may properly be interpreted broadly as a final decision made
in proceedings under this Part. To adopt Chief Justice Lamers terminology in
Laba
at 982, the declaration of constitutional invalidity of s. 753(1) can and
should be piggybacked onto appeal proceedings permitted by Part XXIV of the
Criminal
Code
.

[52]

I would dismiss Mr. Boutiliers application to quash the Crowns
appeal.

The
Honourable Madam Justice Neilson

Reasons for Judgment of the Honourable
Mr. Justice Groberman:

[53]

I have had the privilege of reading the reasons for judgment of my
colleague, Madam Justice Neilson, with which I agree. It is clear that the
constitutional declaration is a final order. As my colleague points out, it is
less clear that the declaration is a decision under Part XXIV of the
Criminal
Code
. The language of s. 759(2) is open to different interpretations.
Pragmatic considerations greatly favour an interpretation that makes constitutional
declarations appealable as of right to this Court. I therefore agree that the
best interpretation of s. 759(2) is one that affords the Crown a right of
appeal from a declaration of unconstitutionality.

[54]

The matter is not, however, free from doubt. The power to declare a
provision of the
Criminal Code
of no force and effect derives from
s. 52(1) of the
Constitution Act
, 1982, and from the inherent
declaratory jurisdiction of the Supreme Court. It is arguable, therefore, that
a declaration that a provision is unconstitutional is, under the approach
described by Lamer C.J.C. in
R. v. Laba
and
R. v. Keegstra
, not
an order under Part XXIV of the
Criminal Code
, but rather an order under
the
Constitution Act, 1982
and under the inherent jurisdiction of the
Supreme Court.

Constitutional Challenges and the
Court
of Appeal Act

[55]

Even if the constitutional declaration is characterized as something
other than an order under Part XXIV of the
Criminal Code
, however, I am
of the view that an appeal lies to this Court. Section 6(1)(a) of the
Court
of Appeal Act
, R.S.B.C. 1996, c. 77 provides:

6
(1)
An appeal lies to the court

(a) from an order of the
Supreme Court or an order of a judge of that court

[56]

Because jurisdiction over criminal law and procedure is within the exclusive
jurisdiction of the federal Parliament under s. 91(27) of the
Constitution
Act, 1867
, a provincial statute like the
Court of Appeal Act
is not
applicable in ordinary criminal proceedings. An application for a declaration
that a provision of the
Criminal Code
is unconstitutional, however, is
not an ordinary criminal proceeding.

[57]

It is well established that a stand-alone challenge to the
constitutionality of a criminal statute is brought as a civil matter:
A.G.
Canada v. Law Society of British Columbia
, [1982] 2 S.C.R. 307. Such
challenges are not uncommon, and appeals in such cases are governed by
provincial legislation. Examples heard in this Court include
Rodriguez v.
British Columbia (Attorney General
) (1993), 76 B.C.L.R. (2d) 145 (appeal
dismissed, [1993] 3 S.C.R. 519);
Downtown Eastside Sex Workers United
Against Violence Society v. Canada (Attorney General)
, 2010 BCCA 439
(appeal dismissed, 2012 SCC 45); and
Carter v. Canada (Attorney General)
,
2013 BCCA 435 (appeal allowed, 2015 SCC 5). The
source of this Courts jurisdiction, in each of those cases, was the
Court
of Appeal Act
.

[58]

A stand-alone declaration that legislation is constitutional or
unconstitutional is generally characterized, then, as a civil matter, even
where the declaration concerns a criminal statute.

Appeals from Constitutional Declarations
Issued in Criminal Prosecutions

[59]

Where a constitutional challenge is mounted in the context of a criminal
proceeding, the issue of whether an appeal can proceed under a provincial
statute is more complicated. It will depend on whether the appeal is properly
characterized as a civil proceeding or a criminal one.

[60]

The answer to that question is not always a simple one. Cases can have
both criminal and civil aspects  see, for example, this Courts recent
decision in
Director of Civil Forfeiture v. Hells Angels Motorcycle
Corporation
, 2014 BCCA 330. The proper characterization of an appeal can be
a matter of some subtlety. E.G. Ewaschuk,
Criminal Pleadings and Practice in
Canada
, 2nd ed. (Toronto: Canada Law Book, 1987) (loose-leaf updated to
release No. 123, December 2015) at
§
23.0050
states:

An appeal is either civil or criminal in nature. The nature
and character of the appeal is
not
determined by the result of the proceedings
being appealed from but, rather, by the nature of the law upon which the proceedings
are based. The test is whether the proceedings being appealed are criminal in nature
and founded on the federal criminal law power, or whether the proceedings are civil
in nature and founded on provincial legislative powers.

[61]

Normally, where a constitutional declaration is sought within a criminal
prosecution, the declaration is closely bound up with issues of guilt or
innocence, with procedural rights, or with punishment. All of those matters are
manifestly within the core of criminal law, and the proceedings are, therefore,
governed by criminal procedures. In order to avoid the procedural chaos that
could accompany the existence of a multiplicity of appeal proceedings, the
courts have held that, in such circumstances, appeals are governed exclusively
by criminal procedures. In
Kourtessis v. M.N.R.
, [1993] 2 S.C.R. 53 at
80, La Forest J., speaking for three of the six judges who participated in the
decision
[1]
The admixture of provincial civil
procedure with criminal procedure could, I fear, result in an unpredictable
mish-mash where, in applying federal procedural law, one would forever be
looking over one's shoulder to see what procedure the provinces have adopted
(and this may differ from province to province) to see if there was something
there that one judge or another would like to add if he or she found the
federal law inadequate. And I see no reason in principle why appeals could not
be read in for other interlocutory proceedings, or indeed why other provincial
rules of procedure might not be adopted That, barring federal adoption, is in
my view constitutionally unacceptable. It is certainly impractical. In dealing
with procedure, and particularly criminal procedure, it is important to know
what one should do next.
[62]

Where a constitutional declaration remains bound up with issues of an
accuseds guilt or innocence, the punishment to be imposed on a person convicted
of a crime, or with procedural rights of an accused, there is no doubt that the
nature of the proceedings will be criminal. Appeal rights must be found
within the
Criminal Code
or some other applicable federal statute
relating to the criminal law.
[63]

Circumstances will arise, however, where
issues of constitutionality become separated from the criminal proceedings in
which they first arose. The following situations are examples of such
circumstances:
·

An accused may successfully challenge a particular provision of
the
Criminal Code
, but still be convicted because other
constitutionally-valid provisions of the
Code
are sufficient to sustain
the charge;
·

An accused may succeed in obtaining a declaration that a
provision is unconstitutional, but the declaration may be suspended for a
period of time, and therefore not assist the accused;
·

A constitutional declaration may relate to a procedural provision
of the
Criminal Code
that ceases to have effect or importance as the
case progresses.
[64]

In each of these situations, a constitutional
declaration that constitutes a final order has been made, but it has ceased to
be connected with the prosecution in which it was granted. The declaration is
irrelevant or inapplicable to the disposition of the criminal case in which it
was made, but it has continued validity and vitality outside that prosecution.
The declaration resembles a constitutional declaration granted in a
free-standing constitutional challenge. It is fair to ask, therefore, whether
civil appeal provisions that apply to declarations made in free-standing
constitutional challenges are equally applicable to declarations that have been
made in the context of criminal prosecutions, but which have, for one reason or
another, become divorced from those prosecutions.
[65]

In
Laba
, Lamer C.J.C. noted that appeals from constitutional
declarations in criminal prosecutions will normally be considered in the
context of ordinary criminal appeal proceedings. He allowed, however, that
appeals from constitutional declarations made in criminal prosecutions can,
where necessary, proceed independently of any right of appeal in the
Criminal
Code
. He noted, at 978, that criminal and constitutional proceedings will
usually,
but need not always
, be governed by the same rules and practices [emphasis
added]. I see no reason why, in appropriate cases, the rules and practices
governing the constitutional proceeding could not include provincial
legislation granting rights of appeal.
[66]

Where the constitutional issue has ceased to be bound up with the
criminal prosecution in which it was issued, appeal proceedings are founded
only on constitutional jurisdiction. An appeal in those circumstances is
properly characterized as civil, notwithstanding that the proceedings in the
court below were criminal. Ewaschuk provides some support for this conclusion.
Further on in
§
23.0050 he
says:
[I]t seems that a direct
challenge to the
constitutionality
of a federal statute is essentially
a
civil procedure
, even if the federal statute was enacted under the
criminal law power of Parliament. The nature of the proceedings (and its appeal
rights) is
not
governed by the subject matter of the target statute, but
rather by the substantive nature of the proceedings and the order granted. In
this sense, the proceedings may have a dual aspect.
[67]

Ewaschuk cites
R. v. White
, 2008 ABCA 294 (appeal on other
grounds allowed, 2010 SCC 21 (
sub. nom. Toronto Star Newspapers Ltd. v.
Canada
)) for this proposition. In
White
, the accused was charged
with the murder of his wife. He sought bail, and made an application under
s. 517 of the
Criminal Code
for a mandatory publication ban pending
trial. The publication ban was issued as a matter of course.
[68]

Some eight months later, several media outlets applied, within the
criminal proceedings, for a declaration that the mandatory publication ban was
unconstitutional. Their application was heard and judgment reserved. Before the
judgment was issued, however, Mr. Whites trial ended, and the publication
ban ended with it. The judge nevertheless proceeded to give judgment, granting
a declaration that aspects of s. 517 of the
Criminal Code
were
unconstitutional. The Crown appealed the decision to the Alberta Court of
Appeal, which had to decide whether it had jurisdiction to hear the appeal.
[69]

Because the publication ban had expired, the issue of the
constitutionality of s. 517 of the
Criminal Code
was irrelevant to
the prosecution of Mr. White. Nonetheless, the judgment issued by the
trial judge was a declaration that had independent force; it applied to future
applications, in other cases, under s. 517.
[70]

The Court described the considerations to be applied in determining
whether an appeal could be taken under provincial statutes:
[22]      
The nature of the proceedings (and therefore the available appeal rights) is
not governed by the subject matter of the target

statute
,
but rather by the substantive nature of the

proceedings

and the

order

granted.
If the proceedings are essentially related to the guilt or innocence of the
accused, or some issue collateral to that (such as bail, or a publication ban
in a particular case), then the proceedings are governed by the appeal and
other procedures in the
Criminal Code.
But if the proceedings are
directed at the constitutionality of the statute, they are civil, even if the
challenge arises in a criminal context.
[71]

The Court then referred to
Laba
, and continued:
[23]       The issue is whether
in this case, in contrast to
Laba
, the two issues (bail and
constitutionality) proceeded separately, and are governed by different rules
and practices.
[72]

The Court concluded that the proceedings that it was dealing with were
essentially civil:
[25]
Which type of
proceeding was this? The answer is found in the Notices of Motion filed.
Neither of them makes any reference to setting aside the order restricting
publication of the proceedings in which White was granted bail. They are
entirely focused on the constitutionality of s. 517. The closest they come
to the particular order in the White case is a request for a declaration
confirming that the applicants are free to publish the material under
restriction. This relief is, however, entirely collateral to the constitutional
challenge to the statute itself.

[29]       [I]n this case the
challenge to the constitutionality of the statute is the central issue, and is
completely divorced from Whites guilt or innocence and his right to bail.
These proceeding[s] are detached from the jurys adjudication on Whites
criminal liability, and also from whether or not he was entitled to judicial
interim release. This is a case where the two issues proceeded separately,
the most obvious manifestation of that being that the applications that
resulted in the order under appeal were brought by non-parties to the criminal
proceedings. If the challenge to constitutionality had been brought by the
accused, it is more likely that the proceedings would fall under the
Laba
rule.
[73]

The case before us differs from
White
in the sense that the
application for a constitutional declaration at the dangerous offender hearing
was made by the accused, and did concern substantive issues of the disposition
under Part XXIV of the
Criminal Code
. The proceedings before the trial
judge were undoubtedly criminal in nature. However, the declaration that was
granted did not, in the end, have any bearing on Mr. Boutilier; it did not
apply to him. In challenging the order by way of appeal, the Crown is focussing
exclusively on the constitutionality of the statute. In the context of the
Crown appeal, that issue is completely divorced from issues as to the
appropriate disposition in the dangerous offender hearing. The Crown appeal
will not seek any relief as against Mr. Boutilier. The Crown appeal, then,
is properly characterized as a civil matter. If the
Criminal Code
provisions are interpreted as insufficiently broad to permit a Crown appeal,
then, s. 6(1) of the
Court of Appeal Act
is available to fill the
lacuna.
[74]

I acknowledge that there will be some overlap between the arguments
presented by the Crown in its appeal and those that it may make in response in Mr. Boutiliers
appeal, should that appeal also proceed. Such an overlap might raise the
spectre of a procedural mish-mash of the sort described in
Kourtessis
.
There is, however, no possibility of procedural chaos of the sort La Forest J.
warned of. Both appeals will proceed in this Court, and they can be easily
managed to ensure they are heard together. Undoubtedly, they will be
co-ordinated so that they proceed in tandem.
[75]

Although I find the
White
decision to be the most relevant on
this application to quash, there are other cases that support the proposition
that, even when orders have initially been made in criminal proceedings, there
is room for a civil appeal where the constitutional issue has become separated
from criminal law issues. The cases are of limited precedential value, though,
as the courts jurisdiction to hear the appeals do not appear to have been
contested.
[76]

In
R. v. Lepage
(1997), 119 C.C.C. (3d) 193 (Ont. C.A.) (appeal
on other grounds dismissed, [1999] 2 S.C.R. 744) in endnote 4 at 237, Doherty
J.A. was of the view that the application for declaratory relief, brought
within the context of criminal proceedings, would be sufficient to engage the
courts civil appellate jurisdiction.
[77]

In
R. v. S.F.
(2000), 141 C.C.C. (3d) 225 (Ont. C.A.), an accused
challenged D.N.A. warrant provisions of the
Criminal Code
. He was
partially successful. He was, ultimately, acquitted of the charge that gave
rise to the issuance of the warrant, with the result that the constitutional
declaration became divorced from the criminal proceedings. The Court of Appeal
found that it had jurisdiction to hear an appeal from the constitutional
declaration, relying, in part, on the footnote in
Lepage
.
[78]

One final case that should be mentioned is
R. v. J.C.
(2006), 206
C.C.C. (3d) 276 (Ont. S.C.J.). In that case, a judge of the Ontario Superior
Court of Justice found that he did not have jurisdiction under civil appeal
statutes to hear an appeal from a Youth Court Judges determination that a
provision of the
Youth Criminal Justice Act
, S.C. 2002, c. 1
was unconstitutional. After referring to
Kourtessis
,
Lepage
, and
S.F.
,
the judge said:
These
authorities support the position that a superior court judge has the inherent
jurisdiction to grant declarations of constitutional validity, that whether or
not they are part of a criminal proceeding, as was the case in

LePage
, or were distinct proceedings, as was the case in

Koutessis

and

S.F
., an appeal lies to the Court of Appeal, applying the
provincial civil appeal routes.
[79]

The judge rejected the idea that a similar appeal route lay from the
Youth Court to the Superior Court of Justice under provincial legislation. That
conclusion appears to be a sound one. A finding that a statute is
unconstitutional, where not made by a superior court, does not appear to amount
to a formal declaration that the law is of no force and effect (see
R. v.
Lloyd
, 2014 BCCA 224 (appeal to SCC under reserve) at paras. 29-38;
R.
v. Sharkey
, 2015 ONSC 1657 at para. 7). The dual proceeding approach
discussed in
Laba
is, therefore, arguably inapplicable to constitutional
findings of courts other than superior courts.
Applicability of the Criminal Code
Provisions
[80]

I wish to make it clear that a determination that the
Court of Appeal
Act
provides a potential appeal route for the Crown in this case does not
undermine the existence of an appeal route under the
Criminal Code
. I
would characterize the Crown appeal in this matter as civil in nature, for the
reasons I have articulated. I do not think that casts doubt on the
constitutionality of the
Criminal Code
appeal provisions, which seem
sufficiently closely tied to the federal jurisdiction over criminal law and
procedure as not to offend the division of powers in the
Constitution Act,
1867
. There is no operational conflict between the
Criminal Code
appeal provisions and the
Court of Appeal Act
, so there is no need to
find either of them to be inoperative.
[81]

For the sake of completeness, I mention s. 674 of the
Criminal
Code
, which might appear, at first glance, to create operational conflict:
674. No proceedings other than
those authorized by this Part [Part XXI] and Part XXVI shall be taken by way of
appeal in proceedings in respect of indictable offences.
[82]

The section does not conflict with the existence of an appeal under the
Court
of Appeal Act
for two reasons. First, the section has no application to
appeals in dangerous offender proceedings. Such proceedings cannot have been
contemplated as being included in the phrase proceedings in respect of
indictable offences because the appeal provisions relating to such proceedings
are found in Part XXIV of the
Code
, not in Part XXI or XXVI.
[83]

More generally, however, as Lamer C.J.C., writing for the majority,
explained in
Dagenais v. Canadian Broadcasting Corporation
, [1994] 3
S.C.R. 835 at 859, the purpose of s. 674 was to replace appeal proceedings
by way of writ of error and prerogative writ with new, statutory appeal rights.
It was not intended to create new gaps in the availability of appellate review.
In
Keegstra
, at para. 12, he reiterated the point:
An appeal of a ruling against the
constitutionality of a

Criminal
Code

provision is not proscribed by
the

Criminal Code
. In
particular, the limitation imposed by
s.
674, and mirrored in

s. 40(3)
of the

Supreme Court Act
, does
not apply.
Conclusion
[84]

I agree with Neilson J.A. that the Crown has a statutory right to appeal
the declaration of unconstitutionality granted in the court below under
s. 759(2) of the
Criminal Code
. If that provision were not broad
enough to allow for a Crown appeal, however, the Crown would nonetheless be
entitled to appeal the matter through civil appeal proceedings under the
Court
of Appeal Act
.
The
Honourable Mr. Justice Groberman
Reasons for Judgment of the Honourable
Madam Justice Fenlon:
[85]

I have had the advantage of reading the reasons for judgment of both my colleagues.
I concur with the reasons of Madam Justice Neilson.
[86]

While I do not necessarily disagree with the reasons for judgment of Groberman
J.A., the analysis he presents is unnecessary for the disposition of this
matter, and as the issues were not addressed in argument, I would prefer to
express no opinion on it.
The
Honourable Madam Justice Fenlon



[1]
The other three judges rejected the idea that appeals under provincial
legislation were ousted. Because the appeal was a combined appeal of two
different proceedings, the question of whether the B.C. Court of Appeal had
been correct to conclude that it did not have jurisdiction to hear an appeal of
the matter that commenced under the
Criminal Code
(
Kourtessis v.
M.N.R
. (1989), 50 C.C.C. (3d) 201) was, ultimately, of only academic
interest. Nonetheless, the result of the 3:3 split of the Supreme Court of Canada
would technically have been to uphold the decision of the B.C. Court of Appeal
that it lacked jurisdiction on that aspect of the appeal. Thus, in some sense,
La Forest J.s judgment is the majority judgment.

