COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:	R. v. Lindsay,
	2008 BCCA 30

Date: 20080123

Docket: CA032186

Between:

Regina

Respondent

And

David Kevin Lindsay

Applicant

Before:	The Honourable Mr. Justice Hall
	The Honourable Mr. Justice Mackenzie
	The Honourable Mr. Justice Smith

 

Applicant	Appearing In Person
U. Botz	Counsel for the Respondent
Place and Date of Hearing:	Vancouver, British Columbia
21 November 2007
Place and Date of Judgment:	Vancouver, British Columbia
23 January 2008

 

Written Reasons by:

The Honourable Mr. Justice Smith

Concurred in by:

The Honourable Mr. Justice Hall The Honourable Mr. Justice Mackenzie

Reasons for Judgment of the Honourable Mr. Justice Smith:

Introduction

[1]                Mr. Lindsay applies for a review of a chambers order made by Mr. Justice Lowry denying him leave to appeal pursuant to s. 839(1) of the Criminal Code, R.S.C. 1985, c. C-46, from the dismissal of a summary conviction appeal.  Section 839(1) provides:

[…] an appeal to the court of appeal […] may, with leave of that court or a judge thereof, be taken on any ground that involves a question of law alone […].

[2]                The standard applicable on the application before Mr. Justice Lowry was that described in R. v. Lord, 2005 BCCA 165, [2005] B.C.J. No. 627 (QL) (Chambers, Saunders J.A.) ¶ 6: the applicant

[…] must establish that the appeal is on a question of law alone.  If it is, this Court has discretion whether to grant leave to appeal.  The two considerations commonly applied are the importance of the issue, and whether there is a reasonable possibility of success:  R. v. Westwood (1995), 63 B.C.A.C. 236, [1995] B.C.J. No. 2146, and R. v. Hunt (1998), 108 B.C.A.C. 218, [1988] B.C.J. No. 1347, although as observed by Southin J.A. in R. v. Martin, 2004 BCCA 548, the essential question on the exercise of discretion is the interests of justice.

[3]                Mr. Justice Lowry did not determine whether the proposed appeal presented a question of law alone.  Rather, he dismissed the application on discretionary grounds.  His reasons for doing so can be found at 2005 BCCA 376, 215 B.C.A.C. 47.  After noting that the appeal had “no real prospect of success” and that the judgment under appeal appeared to be “unassailable”, he concluded,

[9]        I do not consider Mr. Lindsay has established that it is in the interests of justice that discretion be exercised in favour of granting leave to appeal.

[4]                Mr. Lindsay must meet a high standard on this application for review.  As Finch J.A. (now C.J.B.C.) said for the Court in East Broadway Residents Association v. Vancouver (City), 2000 BCCA 657, [2000] B.C.J. No. 2460 (QL):

[11]      The test on an application to review is whether there has been an error in principle.  The incorrect exercise of discretion will not suffice.  In MacMillan Bloedel v. British Columbia, [2000] B.C.J. No. 1425, the Court said:

            It has not been shown to me that the Court of Appeal judge in Chambers fell into any error of principle which could leave this court in a position to vary his order as sought.  The standard of review by a panel of this court of a decision of a single judge has been said to be that the court will not interfere unless it is satisfied that the Chambers judge was wrong in the legal sense and not merely that he or she exercised discretion incorrectly:  see Frew v. Roberts (1990), 44 C.P.C. (2d) 34 (B.C.C.A.).

Background

[5]                This matter has a lengthy judicial history.

[6]                Mr. Lindsay was convicted on March 25, 2002 in the Provincial Court at Kamloops of driving a motor vehicle without a driver’s licence, without insurance, and without displaying proper licence plates, contrary to provisions of the Motor Vehicle Act, R.S.B.C. 1996, c. 318.  The offences occurred on August 27, 2001.

[7]                On April 11, 2002, Mr. Lindsay filed a notice of appeal from his convictions in the Supreme Court of British Columbia.  Before his summary conviction appeal was heard, he brought an application for an order that certain sections of the Court Rules Act, R.S.B.C. 1996, c. 80, and of the Official Reporters Regulation, B.C. Reg. 224/84, as amended, be declared of no force and effect “insofar as they purport to impose fees upon the transcripts necessary for me to exercise and obtain my fundamental right to justice in this matter”.  His contention was that the impugned sections infringe his constitutional rights since they amount to the “selling of justice”, which is prohibited by Magna Carta.[1]  He relied as well on the English Bill of Rights, 1689[2] and the Act of Settlement, 1701[3].  In comprehensive written reasons published on July 30, 2003, Mr. Justice Powers dismissed the application and extended the time for Mr. Lindsay to file the necessary transcripts, which had expired, with liberty to apply for a further extension if necessary.  His reasons for judgment are reported: see 2003 BCSC 1203, 110 C.R.R. (2d) 30.

[8]                Mr. Lindsay filed an appeal from Mr. Justice Power’s order but, on May 6, 2004, the notice of appeal was quashed for want of jurisdiction by a judge of this Court in chambers.

[9]                When Mr. Lindsay’s summary conviction appeal came on for hearing before Mr. Justice Powers on June 28, 2004, he had still not provided transcripts of the Provincial Court proceedings.  As a result, Mr. Justice Powers dismissed his appeal.

[10]            On June 29, 2005, one year later almost to the day, Mr. Lindsay’s application for leave to appeal to this Court from the dismissal of his appeal came on for hearing before Mr. Justice Lowry.  His decision which gives rise to the review application now before us was given on July 13, 2005. 

The Prior Decisions

[11]            Before Mr. Justice Powers, Mr. Lindsay argued that the Magna Carta and the English statutes mentioned above are part of the Constitution of Canada.  He submitted, as he had before, that these instruments limit the legislative power of Parliament and the provinces and, in particular, preclude them from enacting legislation that has the effect of “selling justice” contrary to Magna Carta.  Accordingly, he contended, it was beyond the power of the Provincial Legislature to enact the Official Reporters Regulation to the extent that it requires him to pay a fee to an “authorized reporter” to obtain a transcript of the proceedings against him in the Provincial Court, which was required by s. 6(7) of the Criminal Rules of the Supreme Court of British Columbia, S.I./97-140, in order to perfect his summary conviction appeal.  Further, he submitted that it is a principle of fundamental justice that transcripts should be provided to him at no cost. 

[12]            Mr. Justice Powers did not accede to Mr. Lindsay’s submissions. 

[13]            First, he rejected Mr. Lindsay’s submission that the Magna Carta is a constitutional document that overrides all federal and provincial statutes.  Rather, following R. v. Jebbett, 2003 BCCA 69, [2003] B.C.J. No. 238 (QL), as he was bound to do, he found that Magna Carta is subject to modification by provincial legislation. 

[14]            Next, he rejected Mr. Lindsay’s submission that it is a principle of fundamental justice that transcripts should be provided at no cost.  On this point, he followed R. v. Robinson, 2002 BCSC 1062, [2002] B.C.J. No. 1693 (QL), in which Blair J. reached that conclusion following, in turn, R. v. Robinson (1989), 70 Alta. L.R. (2d) 31, 63 D.L.R. (4th) 289 (C.A.).  He noted that rights of appeal are created and governed by statute and adopted the reasoning of the Alberta Court of Appeal that, there being no precedent for the provision of free transcripts and no principle of fundamental justice requiring free transcripts, the question was properly one for the provincial legislature.

[15]            Finally, he rejected Mr. Lindsay’s submission that the regulatory requirement that fees be paid for the purchase of transcripts amounts to the “selling of justice” and is therefore prohibited by Magna Carta.  He concluded that the impugned regulation does not require the payment of a fee “in order to obtain justice, or access to justice”.  Rather, he said, it simply requires an appellant to provide the materials necessary to properly process the appeal.  He noted, as well, that the requirement is not absolute, in that Rule 6(7) gives the summary conviction appeal court discretion to relieve an appellant of the requirement to provide transcripts in appropriate cases. 

[16]            Accordingly, Mr. Justice Powers dismissed Mr. Lindsay’s application.

[17]            In refusing to grant Mr. Lindsay’s application for leave to appeal from that order, Mr. Justice Lowry said,

[7]        Mr. Lindsay maintains that R. v. Jebbett was wrongly decided and he seeks to cite additional authorities in support of arguments that he considers were not advanced in that case.  He has, however, cited no authority on this application that is binding on this Court which undermines the conclusion in Jebbett.  Given that such rights as may be provided by Magna Carta have so recently been held by this Court to have been modified by the legislation of this province, I do not consider there to be any real prospect of the proposed appeal succeeding.  Indeed, the judgment from which Mr. Lindsay seeks to appeal appears to me to be unassailable.  I do not consider leave should be granted here as it was in Jebbett on what is essentially the same issue that was decided in that case.

[8]        Mr. Lindsay contends that the issue to be raised on the proposed appeal is of general importance because, according to him, there are many who are unable to prosecute appeals simply because of the cost of obtaining transcripts.  The difficulty with what he says in that regard is that there is on this application no sound basis on which it can be said that the requirement for transcripts under the Criminal Rules of the Supreme Court of British Columbia does in fact pose any significant impediment to the prosecution of criminal and quasi-criminal appeals.  Certainly the cost of the transcript in this case was not such as to have precluded Mr. Lindsay from prosecuting his appeal.  He chose not to obtain the required transcript only to attempt to prove a point.

Issues on Review

[18]            Mr. Lindsay presents an intricate submission, the essence of which is that Mr. Justice Lowry erred in law when he failed to recognize that the Magna Carta is the foundation of the rule of law itself and that it protects the rights, freedoms, and liberties of all citizens.  In his submission, Magna Carta was received in Canada as part of our constitution by virtue of the preamble to The Constitution Act, 1867, 30 & 31 Vict., c. 3 (U.K.), in which it is stated that the Provinces wished to be federally united under the Crown “with a Constitution similar in Principle to that of the United Kingdom”.  Accordingly, he submits, it has constitutional status and overrides any federal or provincial statute that contravenes its provisions.  He submits that this appeal raises an important question of law and urges us to discharge Mr. Justice Lowry’s order and to grant him leave to appeal.

Discussion

[19]            Mr. Lindsay offers a large selection of judicial obiter dicta and academic commentary in an attempt to support his thesis that Magna Carta trumps all legislation that contravenes its provisions.  The volume of this material precludes any practical canvass of it in these reasons.  Suffice it to say that there is another point of view espoused by some legal historians and constitutional scholars which holds that the notion that Magna Carta provides absolute protection of individual rights against all forms of prerogative, judicial, and legislative authority is primarily a political conception of the document and that, as a legal instrument, it has never enjoyed inviolable constitutional status in England but is part of the common law, to be defended and amended as may be necessary from time to time: see, for example, B.H. McPherson, The Reception of English Law Abroad (Brisbane, Aust.:  Supreme Court of Queensland Library, 2007) at 205; J.C. Holt, Magna Carta, 2nd ed. (Cambridge:  Cambridge University Press, 1992)  at 1-2, 16-17.  In my view, it is not necessary to the resolution of this appeal to enter into this scholarly discussion since this Court has pronounced upon the point raised by Mr. Lindsay.

[20]            In Collinge v. Gee (1968), 64 W.W.R. 321, [1968] B.C.J. No. 41 (QL) (C.A.), affirmed on a different point [1968] S.C.R. 948, this Court held that Magna Carta does not guarantee a right of a litigant to have a transcript provided free of charge.  In that case, the appellant, who had been convicted following a trial in magistrate’s court, wanted to consult a transcript of the proceedings to see if there were grounds of appeal.  He argued, unsuccessfully, that the relevant sections of the Criminal Code required the respondent court reporter to transcribe her notes of the evidence and supply him a transcript free of charge.  On appeal, he also relied on the Canadian Bill of Rights, S.C. 1960, c. 44, and on chapter 29 (chapter 40 of the 1215 version) of Magna Carta, which he submitted prohibited the “sale of justice”.  In dismissing this submission, Robertson J.A., with whom Norris J.A. agreed on this point (at 330), wrote, at 353-54:

                        On my own reading of the quoted provisions in the Canadian Bill of Rights and Magna Charta I cannot extract from them what counsel submits I should.  The words do not convey to me the meaning which he submits they have.  This being so, there is no purpose in elaborating on the language itself, except for one point.  Under sec. 2 of the Canadian Bill of Rights “every law ***shall ***be so construed and applied as not to abrogate, abridge or infringe ***any of the rights or freedoms herein recognized and declared.”  The effect of this must be a preservative one only; there must be an existing right or freedom before there can be any question of abrogation, abridgement or infringement, and then such right or freedom may not be abrogated, etc.  The language is not apt to create any right or freedom.  No authority in Canada or England has been cited that suggests the prior existence of the right contended for here.

The third judge, Branca J.A., simply stated, at 342, “I am unable to see the applicability of the quoted provision of the Magna Charta”.

[21]            Further, in R. v. Jebbett, this Court rejected an argument on an appeal from conviction on a parking ticket that the Motor Vehicle Act and the municipal bylaw in question offended the Magna Carta and several sections of the Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act, 1982, 1982, c. 11 (U.K.).  In dismissing the appeal, Ryan J.A., who gave judgment for the Court, said,

[4]        Unlike the Canadian Charter of Rights and Freedoms, the Magna Carta is not a constitutional document.  As the Canadian constitutional scholar, Peter Hogg, has noted in his text, Constitutional Law of Canada, the Magna Carta and the English Bill of Rights are simply English statutes amenable to ordinary legislation.  The Magna Carta was imported into the law of British Columbia by a series of enabling statutes.  It remains a part of British Columbia law by virtue of sections 2 and 3 of the Law and Equity Act [R.S.B.C. 1996, c. 253], which provide:

2.         Subject to section 3, the Civil and Criminal Laws of England, as they existed on November 19, 1858, so far as they are not from local circumstances inapplicable, are in force in British Columbia, but those laws must be held to be modified and altered by all legislation that has the force of law in British Columbia or in any former Colony comprised within its geographical limits.

3.         Section 28 of the Offences Against the Person Act, 1828 [24 & 25 Vict., c. 100 (U.K.)] and all sections of the Real Property Act, 1845 are not in force in British Columbia.

[5]        The statute of Magna Carta was discussed by Mr. Justice McPhillip in Re: Immigration Act and Munshi Singh (1914), 6 W.W.R. 1347 (B.C.C.A.).  At p.1371, he said:

    Magna Carta and The Habeus Corpus Act [31 Cha. II, c. 2 (U.K.)], ... - having relation to criminal and supposed criminal matters, as well as the Act for more effectually securing the liberty of the subject ... having relation to other than criminal or supposed criminal matters – is the law of British Columbia, but, as we have seen, subject to be modified by all legislation having the force of law in the Province of British Columbia.

Applying these principles to the case at hand, if the Magna Carta ever provided the rights suggested by the appellant in this case, in my view those rights must be taken to have been modified by the passage of the British Columbia Motor Vehicle Act and the Streets & Traffic Bylaw of the City of Victoria.  The appellant's argument, based on Magna Carta, cannot succeed.

[22]            Mr. Lindsay contends that R. v. Jebbett was decided incorrectly.  However, R. v. Jebbett does not stand alone against Mr. Lindsay’s arguments.  The point has also been decided against him by this Court in Collinge v. Gee and in Re: Immigration Act and Munshi Singh, which was cited in Collinge v. Gee.  Given this consistent line of authority, I think it highly unlikely that this Court would change course and I must agree with Mr. Justice Lowry’s conclusion that an appeal on this basis has no real prospect of success.

[23]            Mr. Lindsay presents an alternative argument that he has a constitutional right of appeal that cannot be fettered by the charging of fees for transcripts.  I would not accede to this submission either.  The modern right of appeal is a statutory creation:  see, for example, R. v. Lawrence (1998), 104 B.C.A.C. 57, [1998] B.C.J. No. 432 (QL) (Chambers, Southin J.A.); W. Ehrcke, Q.C., “Appeals”, Chapter XVII, in Jerome J. Atrens, Peter T. Burns, and James P. Taylor, Criminal Procedure:  Canadian Law and Practice, vol. 3 (Markham, Ont.:  LexisNexis Butterworths), updated to October 2000, at XVII-1 and XVII-2.  As such, it is subject to all duly enacted statutory qualifications and limitations, including the rules that govern appeals.

[24]            I would not accede to Mr. Lindsay’s submissions.  In my view, Mr. Justice Lowry did not err in principle and he did not act contrary to the interests of justice.  I agree with him that this appeal has no real prospect of success and I would dismiss this application for review.

“The Honourable Mr. Justice Smith”

I agree:

“The Honourable Mr. Justice Hall”

I agree:

“The Honourable Mr. Justice Mackenzie”