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Court of Appeal does not have jurisdiction to hear a summary conviction appeal under s. 830 of the Criminal Code

Newfoundland and Labrador

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Canada

In R. v Chaulk, 2021 NLCA 49, the appellant pleaded guilty to three counts of assault under s.266 of the Criminal Code, RSC 1985, c. C-46 (the “Code”). The appellant filed an appeal with the Court of Appeal of Newfoundland and Labrador (the “NLCA”) pursuant to s.830 of the Code. Under s.829 of the Code, an appeal under s.830 must be made to an “appeal court” which is defined in s.2 of the Code as the “superior court of criminal jurisdiction for the province”. O’Brien J.A. explained that prior to 2015 amendments to the Code, “superior court of criminal jurisdiction for the province” used to be defined in Newfoundland and Labrador as either the Supreme Court or the Court of Appeal, therefore the NLCA had previously determined that it had jurisdiction to hear appeals brought under s.830 (para 10).

However, the 2015 amendments to the Code changed the defined term “superior court of criminal jurisdiction” in Newfoundland and Labrador. Reference to the Court of Appeal was removed and the term now meant only the “Supreme Court”. “Supreme Court” was undefined.

“Supreme Court” Does Not Include the Court of Appeal

O’Brien J.A. observed that the Judicature Act, RSNL 1990, c. J-4 and the Court of Appeal Act, SNL 2017, c. C-37.002 treated theSupreme Court and the Court of Appeal as two distinct courts (para 13). The questions was in light of the legislative distinction between these two courts, whether the term “Supreme Court” in the Court should include the NLCA.

There were two arguments in respect of whether “Supreme Court” ought to be interpreted to include the Court of Appeal. The first argument was that the Court of Appeal had explicit jurisdiction. Previously the Court of Appeal clearly had jurisdiction to hear s.830 appeals based on the language of the Code. However, given 2015 the amendments to the Code, where the reference to Court of Appeal was taken out, this argument could no longer be maintained (para 21).

The second argument was that the term “Supreme Court” implicitly included theNLCA based on the way the courts were historically structured until 2017, when the Judicature Act was amended and the Court of Appeal Act was enacted. Before 2017, the definition of “Supreme Court” in the Judicature Act included “where the subject or context requires …the Court of Appeal or the Trial Division” (para23). Therefore, after the Code was amended in2015 there was an argument that, based on the statutory language at the time, “Supreme Court” could have included both Courts.

O’Brien J.A. rejected this argument as well. As a result of the 2017 amendments to the Judicature Act, the definition of “Supreme Court” therein no longer included the Court of Appeal. The current Judicature Act did not support the contention that “Supreme Court” in the Code could encompass the Court of Appeal (para 26).

In addition, ordinary rules of statutory interpretation were contrary to the conclusion that “Supreme Court” in theCode could mean the Court of Appeal. The language was clear and unambiguous (para 31).

Federal and Provincial Concurrency

O’Brien J.A. explained that the Code defines for each territory and province the courts having jurisdiction without defining any of those courts. Rather, the definitions must be found in provincial and territorial legislation. There was no division of powers issue, since under The Constitution Act, 1867, 30 & 31 Vict, c 3, Parliament has authority to legislate over criminal law and the provinces have the authority to legislate over courts. There was nothing to suggest that a province in creating or changing the definitions of provincial courts would encroach on the federal criminal law power. Parliament had delegated the responsibilities of defining the courts to the provinces and territories and it was in the provinces’ power to change those definitions. As a result, the definitions were not static and therefore it was more reasonable to use a definition of “Supreme Court” in the Code based on an interpretation of provincial/territorial legislation at the time the term is interpreted (para 32-34).

O’Brien J.A. observed that s.2 of the Code was not uniform and for some provinces and territories it expressly referred to the Court of Appeal. This was not the case for Newfoundland and Labrador. Further, the decision of the Supreme Court of Canada in R v. Szabo, 1991 CanLII 92 (SCC), [1991] 1 S.C.R. 736 (S.C.C.) and the decision of the Ontario Court of Appeal in R. v. Cook (1986), 1986 CanLII 4623 (ON CA), 13 O.A.C. 238, 26 C.C.C. (3d) 188 (Ont. C.A.) had held that “superior court of criminal jurisdiction” did not include the Courts of Appeal in Quebec or Ontario (para 36-37).

O’Brien J.A. concluded that the term “Supreme Court” in s.2 of the Code could not implicitly include the NLCA. Therefore, the NLCA was not an appeal court for the purpose of s.829 and had no jurisdiction to hear an appeal under s.830 (para 39-40).

Subsequent Appeal Still Possible to Court of Appeal Under s.839 of the Code

O’Brien J.A. clarified that a subsequent appeal of the decision of the Supreme Court on a s.830 appeal can still be made to the Court of Appeal since s.839 of the Code provides for an appeal with leave to that court on any ground that involves a question of law alone (para 41).

April 14, 2022
R. v Chaulk, 2021 NLCA 49