R. v. Szabo, [1991] 1 S.C.R. 736
Zoltan Szabo Appellant
v.
Her Majesty The Queen Respondent
Indexed as: R. v. Szabo
File No.: 20949.
1991: January 28; 1991: March 28.
Present: Lamer C.J. and La Forest, L'Heureux‑Dubé, Gonthier, Cory, Stevenson and Iacobucci JJ.
on appeal from the court of appeal for quebec
Criminal law ‑‑ Summary convictions ‑‑ Appeal to Court of Appeal ‑‑ Accused's appeal against conviction inscribed in Court of Appeal without seeking leave from that court -- Crown's motion to dismiss appeal granted ‑‑ Whether accused misled by clerk of Court of Appeal into believing that he had an appeal as of right ‑‑ Whether Court of Appeal erred in dismissing accused's appeal ‑‑ Criminal Code, R.S.C. 1970, c. C‑34, ss. 762(1), 771(1).
The accused was convicted of assault in the Municipal Court of Montréal and his appeal to the Superior Court was dismissed. He then inscribed a further appeal to the Court of Appeal without seeking leave from that court. The accused alleged that he was told by the clerk of the Court of Appeal that he could appeal his conviction to the Court of Appeal as of right. The clerk in question denied having given such advice. Although the Crown later informed the accused that he required leave to appeal, he did not believe the Crown and refused to follow its advice. The Crown's motion to dismiss the appeal on the basis that leave had not been sought was granted by the Court of Appeal.
Held: The appeal should be dismissed.
The Court of Appeal did not err in dismissing the accused's appeal. The accused, who was not represented by counsel, erroneously relied on s. 762(1) of the Criminal Code to appeal to the Court of Appeal. This section is only applicable to an appeal before the superior court of criminal jurisdiction for the province. It is s. 771(1) of the Code which provides the only avenue of further appeal to the Court of Appeal, and this section requires leave to be granted on a question of law in order for the Court of Appeal to hear the appeal. The accused clearly erred in not seeking leave to appeal the upholding of his conviction to the Court of Appeal, and his failure to seek leave was based on his own error, not on his being misled by the clerk of the Court of Appeal.
Statutes and Regulations Cited
Criminal Code, R.S.C. 1970, c. C‑34, ss. 761 [rep. & sub. 1985, c. 19, s. 182], 762(1) [idem], 771(1) [idem, s. 183].
Rules of Practice in Criminal Matters in the Court of Appeal of Quebec, SI/83‑107, s. 27 [sub. SI/87‑255].
APPEAL from a judgment of the Quebec Court of Appeal[1], allowing respondent's motion to dismiss the accused's appeal from a judgment of the Superior Court[2], which dismissed the accused's appeal from his conviction in Municipal Court[3] on a charge of assault. Appeal dismissed.
Zoltan Szabo, on his own behalf.
Germain Tremblay, for the respondent.
//Lamer C.J.//
The judgment of the Court was delivered by
Lamer C.J. -- I would like to begin these reasons by pointing out that the appellant, Mr. Szabo, was granted leave to appeal to this Court because there was a concern that a certain procedural error on his part may have resulted from his having been misled by a clerk at the Quebec Court of Appeal, and that in light of the fact that he was representing himself, he had thereby been unfairly deprived of "his day in court". I raised this matter with the appellant at the oral hearing of this appeal and he was afforded an opportunity to address it again before this Court. After having heard further explanation and argument from Mr. Szabo at the oral hearing, I am of the view that the Quebec Court of Appeal did not err in dismissing Mr. Szabo's appeal, and that there was no unfairness in the dismissal of his appeal.
The Facts and the Lower Court Judgments
On April 21, 1986, the appellant was convicted of assault (punishable on summary conviction) and was sentenced to a 12-month suspended sentence in the Municipal Court of Montréal. Mr. Szabo appealed his conviction to the Quebec Superior Court; this appeal was dismissed by Mayrand J. on November 21, 1986.
Mr. Szabo alleges that on December 17, 1986, he spoke to the clerk of the Quebec Court of Appeal and was told that he could appeal his conviction to the Quebec Court of Appeal as of right. The clerk in question denies (by way of affidavit) having given such advice to the appellant. Subsequently, Mr. Szabo inscribed his appeal without seeking leave of the Court of Appeal.
The Crown contacted Mr. Szabo by telephone in December of 1987 and informed him that he required leave to appeal to the Quebec Court of Appeal, but the appellant did not believe this and refused to follow the Crown's advice. Consequently, on March 23, 1988, the Crown moved to have the appeal dismissed, pursuant to s. 771(1) of the Criminal Code, R.S.C. 1970, c. C-34, and s. 27 of the Rules of Practice in Criminal Matters in the Court of Appeal of Quebec, SI/83-107, on the basis that leave had not been granted or requested and that the time period for requesting leave had long since expired. On April 5, 1988, the Quebec Court of Appeal granted the Crown's request (in the presence of the appellant) and dismissed Mr. Szabo's appeal.
Leave to appeal the judgment of the Quebec Court of Appeal to this Court was granted on February 2, 1989, [1989] 1 S.C.R. xv.
Relevant Statutory Provisions
761. [now s. 829] For the purposes of sections 762 to 770, "appeal court" means, in any province, the superior court of criminal jurisdiction for the province.
762. [now s. 830] (1) A party to proceedings to which this Part applies or the Attorney General may appeal against a conviction, judgment or verdict of acquittal or other final order or determination of a summary conviction court of the ground that
(a) it is erroneous in point of law;
(b) it is in excess of jurisdiction; or
(c) it constitutes a refusal or failure to exercise jurisdiction.
771. [now s. 839] (1) An appeal to the court of appeal as defined in section 601 may, with leave of that court or a judge thereof, be taken on any ground that involves a question of law alone, against
(a) a decision of a court in respect of an appeal under section 755; or
(b) a decision of an appeal court under section 766, except where that court is the court of appeal. [Emphasis added.]
Issue
Did the Quebec Court of Appeal err in law in dismissing the appellant's appeal from the upholding of his conviction by the Quebec Superior Court on the basis that he had neither sought nor been granted leave to appeal to the Quebec Court of Appeal?
Analysis
It is important to make clear at the outset that Mr. Szabo could not have appealed to the Quebec Court of Appeal as of right. There is no question but that leave was required in order for his appeal to be heard by the Quebec Court of Appeal. However, Mr. Szabo has refused to accept this, and has maintained throughout oral argument before this Court that he had an appeal as of right to the Quebec Court of Appeal, pursuant to s. 762(1) of the Code. I will, therefore, go through the Code provisions in order to make it clear to him that leave was required in this case.
In the case at bar, the appellant was convicted of assault punishable on summary conviction. Part XXIV of the Criminal Code (now Part XXVII) sets out the provisions of the Code which apply to summary conviction offences. There are a number of "routes" of appeal from a trial judgment contained therein; one of which is the Summary Appeal on Transcript or Agreed Statement of Facts provided for in s. 762(1). The appeal under s. 762(1), the section upon which Mr. Szabo sought to rely in the case at bar, is an appeal to the superior court of criminal jurisdiction for the province; it is not an appeal to the Quebec Court of Appeal. There is only one "route" of further appeal to the Quebec Court of Appeal; this is provided for in s. 771(1). Moreover, s. 771(1) requires leave to be granted on a question of law in order for the Court of Appeal to hear an appeal. Thus, it is clear that Mr. Szabo erred in not seeking leave to appeal the upholding of his conviction to the Quebec Court of Appeal.
The only remaining question is whether his error resulted from his having received erroneous information from a clerk at the Quebec Court of Appeal. At the oral hearing, Mr. Szabo agreed that this was the central issue in this case, but nonetheless went on to insist that he had an appeal as of right to the Quebec Court of Appeal, pursuant to s. 762(1).
In my view, Mr. Szabo's failure to obtain leave to appeal to the Quebec Court of Appeal did not result from his having been misled by a clerk of the court. The clerk in question denies having given such advice to Mr. Szabo. I am satisfied that what the clerk says is true, especially in light of Mr. Szabo's insistence, even before this Court, that he had an appeal as of right to the Quebec Court of Appeal under s. 762(1).
Given that Mr. Szabo persisted, at this Court, in taking the position that he did not require leave to appeal to the Quebec Court of Appeal, it would appear that he also took this position at the Court of Appeal, and that he did not oppose the Crown's motion to dismiss on the basis that he had simply made an error and ought to be granted an extension of time in which to seek leave to appeal.
In light of the above, I am of the view that the Quebec Court of Appeal did not err in dismissing the appellant's appeal on the basis that he neither sought nor obtained the leave of that court. Given that Mr. Szabo's failure to seek leave was based on his own error and not on his being misled by a clerk of the court, I see no unfairness in the Court of Appeal's decision to dismiss his appeal.
Disposition
I would dismiss the appeal.
Appeal dismissed.
Solicitor for the appellant: Zoltan Szabo, on his own behalf.
Solicitor for the respondent: Germain Tremblay, Montréal.