Her Majesty the Queen v. Briggs [Indexed as: R. v. Briggs]
53 O.R. (3d) 124
[2001] O.J. No. 685
Docket Nos. M26270 and C34813
Court of Appeal for Ontario
Doherty, Goudge and Simmons JJ.A.
March 2, 2001
*Application for leave to appeal to the Supreme Court of
Canada dismissed September 6, 2001 (L'Heureux-Dubé, Arbour
and LeBel JJ.). S.C.C. File No. 28527. S.C.C. Bulletin, 2001,
p. 1518.
Criminal law--Search and seizure--DNA warrant--Court of Appeal having jurisdiction to stay order for taking DNA sample pending appeal--Court to consider whether state interest protected, whether appeal raised serious issue and accused would suffer irreparable harm unless stay granted--Stay issued --Criminal Code, R.S.C. 1985, c. C-46, s. 487.052.
The appellant brought an application for a stay of an order pursuant to s. 487.052 of the Criminal Code for the taking of a DNA sample pending an appeal from that order.
Held, the application should be granted.
Per Goudge and Simmons JJ.A.: The Court of Appeal has jurisdiction to stay an order for the taking of a DNA sample pending appeal. That jurisdiction should be exercised in this case as there was a serious issue to be tried, the appellant would suffer irreparable harm without the stay and the state interest was fully protected given that the appellant was in custody.
Per Doherty J.A. (dissenting): Although the Court has the power to stay the order in issue, a stay was not warranted in this case as the appellant had not perfected the appeal and had offered no reasonable explanation for failing to do so.
APPLICATION for a stay pending the appeal of an order for the taking of a DNA sample.
Cases referred to RJR-MacDonald Inc. v. Canada (Attorney General), 1994 CanLII 117 (SCC), [1994] 1 S.C.R. 311, 111 D.L.R. (4th) 385, 54 C.P.R. (3d) 114 (sub nom. RJR-MacDonald Inc. c. Canada (Procureur général)) Statutes referred to Criminal Code, R.S.C. 1985, c. C-46, s. 487.056(1), as am.
John Norris, for appellant. Renee Pomerance, for respondent.
[1] Endorsement of GOUDGE and SIMMONS JJ.A. (orally):-- In our view, s. 487.056(1) [Criminal Code, R.S.C. 1985, c. C-46] does not remove from this court its jurisdiction to properly regulate proceedings before it. The section simply provides that the taking of an appeal does not per se stay that order.
[2] In addressing whether this court should exercise its jurisdiction to grant a stay pending appeal, the parties agree that the criteria in RJR-MacDonald Inc. v. Canada (Attorney General), 1994 CanLII 117 (SCC), [1994] 1 S.C.R. 311, 111 D.L.R. (4th) 385, are to be applied.
[3] The first of these is whether there is a serious issue to be tried. As the Supreme Court said in RJR, that threshold is a low one. In our view, it is met in this case. The question of whether the order made sufficiently recognizes the privacy interests of the appellant and otherwise meets the best interests of the administration of justice (given the early days of this legislation) is an arguable one.
[4] As to irreparable harm, without the stay the appellant may face an unconstitutional invasion of privacy, which although minor, carries a risk of a matching process which ought not to have been undertaken if the appeal is successful.
[5] Finally, as to the balance of convenience, the state interest here is fully protected given that the appellant is in custody.
[6] We would therefore grant a stay but on terms that the appeal be perfected by March 12, the date for hearing fixed by March 19 and the appeal heard before the appellant's earliest release date, failing which, the stay lapses.
[7] DOHERTY J.A. (dissenting): -- I agree with Goudge J.A. that this court has the power to stay the order in issue, but I would not exercise that power in these circumstances.
[8] The appellant has not perfected the appeal. At no time did he seek an extension of time to perfect the appeal. Counsel has offered no reasonable explanation for the failure to perfect the appeal within the allotted time. Had the appeal been perfected as required by the rules of this court, it would have been heard by now and there would have been no need for this application.
[9] If this court's rules are to be taken seriously by anybody, they must be enforced by the court. A motion to stay an order that is necessitated only because counsel has failed to perfect the appeal as required, should not be easily granted. The appellant has not made out a case for the extraordinary indulgence he seeks in this application. I would refuse to stay the order.
Application granted.