Supreme Court of Canada

Korponay v. Kulik, [1980] 2 S.C.R. 265

Date: 1980-05-21

Tibor Korponay Appellant;

and

Irving Kulik, Director of the Leclerc Institution Respondent;

and

The Attorney General of Canada Mis en cause.

1980: May 21.

Present: Martland, Beetz, Estey, Mclntyre and Chouinard JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR QUEBEC

Criminal law—Habeas corpus—Jurisdiction of the court—Question which could be raised by way of appeal.

The appellant, charged with possession of a narcotic for the purpose of trafficking, elected for trial before judge and jury. After a preliminary hearing, he was cited to trial before the Court of the Queen’s Bench. Afterwards, an indictment was preferred by the Attorney General of Canada in terms identical to those in the original information charging him and his trial proceeded before Mayrand J. in the Court of the Sessions of the Peace. The appellant, convicted and sentenced to fourteen years of imprisonment, launched an appeal and a petition for writ of habeas corpus. The Court of Appeal having dismissed the appeal on the merits, this Court granted the application for leave to appeal from that decision. That appeal will be heard at a later date. The only issue now before this Court is the petition for habeas corpus which had been dismissed by the Superior Court and the Court of Appeal. Nolan J.A., who delivered the reasons of the Court of Appeal, stated that “a petition for writ of habeas corpus does not lie in the circumstances of this case: Goldhar v. The Queen, [1960] S.C.R. 431; In re Richard Darby, [1964] S.C.R. 64; Sanders v. The Queen (1920), 2 C.C.C. 57. All the allegations concerning the alleged lack of jurisdiction of the Court of the Sessions of the Peace could have been raised by way of appeal”.

APPEAL from a judgment of the Court of Appeal for Quebec affirming the judgment of the Superior Court dismissing a petition for habeas corpus. Appeal dismissed.

[Page 266]

Paul Skolnik and Ivan Lerner, for the appellant.

Réjean F. Paul, for the respondent.

The judgment of the Court was delivered orally by

MARTLAND J.—The legal issues raised on the application for habeas corpus will be before this Court on the appellant’s appeal, leave for which has been granted. In these circumstances, we agree with the reasons delivered in the Court of Appeal by Nolan J.A. in dismissing the appellant’s appeal to that Court in respect of his petition for habeas corpus. The appeal is dismissed and also the appellant’s application for a writ of certiorari.

Judgment accordingly.

Solicitor for the appellant: Paul Skolnik, Montreal.

Solicitor for the respondent and the mis en cause: Réjean F. Paul, Montreal.