DATE: 20011101 DOCKET: M27779 (C36207)
COURT OF APPEAL FOR ONTARIO
RE:
HER MAJESTY THE QUEEN (Applicant/Respondent on appeal) –and– JEAN-MARIE PARÉ (Respondent/Appellant on appeal)
BEFORE:
FINLAYSON, AUSTIN and SHARPE JJ.A.
COUNSEL:
Riun Shandler, for the applicant
Michael Davies, for the respondent
HEARD:
October 26, 2001
RELEASED ORALLY:
October 26, 2001
E N D O R S E M E N T
[1] The Crown is seeking to quash an interlocutory appeal brought during the appellant’s criminal proceedings on the basis that this court has no jurisdiction to hear the appeal.
[2] At his trial in 1984 on two charges of first degree murder, the accused was found unfit by the presiding justice who remanded him to the jurisdiction of the Lieutenant Governor's Warrant system (as it then was). At the accused's annual review hearing in 2001, the Ontario Review Board reached the opinion that the accused was fit to stand trial and ordered him returned to court. The accused seeks to appeal from the Review Board's opinion that he is fit to stand trial. The Crown submits that this is an interlocutory appeal for which no statutory basis exists, hence, there is no jurisdiction to hear the appeal.
[3] It is settled law that appellate courts in Canada do not possess inherent jurisdiction to hear appeals: any appeal must find its jurisdiction in the statutory provisions. It is further established that all criminal appeals are statutory and there are no interlocutory appeals in criminal matters. See R. v. Meltzer (1989), 1989 CanLII 68 (SCC), 49 C.C.C. (3d) 453 (S.C.C.) at 461.
[4] The authority for the hearing by the Review Board in this case is governed by s. 672.48(1):
672.48 (1) Where a Review Board holds a hearing to make or review a disposition in respect of an accused who has been found unfit to stand trial, it shall determine whether in its opinion the accused is fit to stand trial at the time of the hearing.
(2) If a Review Board determines that the accused is fit to stand trial, it shall order that the accused be sent back to court, and the court shall try the issue and render a verdict.
Criminal Code of Canada, R.S.C. 1985, as am., s. 672.48
[5] The Code does not provide for any right of appeal as against the Review Board’s opinion that the accused is fit. This was the conclusion reached by the British Columbia Court of Appeal in R. v. Myles, [1995] B.C.J. No. 2395 (B.C.C.A.) in which it stated:
It appears quite plain to me that there is no right of appeal from the giving of an opinion by the Board under s. 672.48. There is, it seems to me, good reason for that. All the Board is doing under s. 672.48 is determining that the question of the accused's fitness to stand trial should again be the subject of the inquiry provided by the Code into fitness to stand trial. It does not determine that he is fit. It is perhaps the equivalent of a committal for trial on the issue.
[6] Accordingly, the for the reasons given, the appeal is quashed.
Signed: “G.D. Finlayson J.A.”
“Austin J.A.”
“Robert J. Sharpe J.A.”