Raymond Desfossés Applicant
Warden of Parthenais Prevention Center Respondent
Minister of Justice of Canada
and the United States of America Respondents
Indexed as: United States of America v. Desfossés
File Nos.: 25695, 25696, 25763.
Hearing and judgment: April 21, 1997.
Reasons delivered: May 29, 1997.
Present: Sopinka, Cory, McLachlin, Iacobucci and Major JJ.
motions for extension of time to serve and file notices of appeal
Criminal law ‑‑ Appeals ‑‑ Supreme Court of Canada ‑‑ Jurisdiction ‑‑ Habeas corpus ‑‑ Applicant ordered extradited and seeking writs of habeas corpus by successive applications ‑‑ First application rejected on merits as if writ had been issued ‑‑ Court of Appeal dismissing appeal and leave to appeal to Supreme Court of Canada refused ‑‑ Whether applicant having appeal as of right with respect to judgments dismissing appeals in subsequent applications ‑‑ Criminal Code, R.S.C., 1985, c. C‑46, s. 784(3), (5).
After the applicant was ordered to be extradited, he sought writs of habeas corpus by successive applications. In the first application the parties proceeded as if a writ had been issued and the application was rejected on the merits. The decision was upheld by the Court of Appeal, and leave to appeal to this Court was refused both initially and on a reconsideration. Three subsequent applications for writs of habeas corpus were also dismissed, and these decisions were affirmed by the Court of Appeal. The applicant sought extensions of time relating to notices of appeal to this Court filed in respect of the decisions of the Court of Appeal concerning these three applications.
Held: The motions for extension of time to serve and file notices of appeal should be dismissed.
Section 784(3) of the Criminal Code, which provides for appeals from a refusal of a writ of habeas corpus, does not apply here. Since the applicant has had a hearing on the merits pursuant to a consent procedure which treated the writ as having been issued, the applicable section is s. 784(5) and he has exhausted his appeals. The applicant therefore cannot appeal as of right with respect to any of the judgments which dismissed his appeals in the second, third and fourth applications. As this Court has no jurisdiction to hear appeals as of right, the applications to extend the time to appeal suffer the same fate.
Referred to: R. v. Olson,  1 S.C.R. 296.
Statutes and Regulations Cited
MOTIONS for extension of time to serve and file notices of appeal. Motions dismissed.
Jack Waissman and G. Todd Barney, for the applicant.
Richard Starck, for the respondents.
The judgment of the Court was delivered by
1 Sopinka J. -- The applicant, who was ordered to be extradited to the United States by order of Ducros J. dated June 19, 1992, brought several motions in relation to appeals and applications for leave to appeal from the alleged refusal of writs of habeas corpus. The motions raised an issue as to the jurisdiction of this Court to entertain appeals as of right in respect of the disposition of the applications for habeas corpus in the courts below. Accordingly, an oral hearing was ordered. After hearing argument, judgment was rendered disposing of the motions with reasons to follow respecting the issue of jurisdiction. The following are the reasons relating to this issue.
The History of the Proceedings
2 After the applicant was ordered to be extradited by Ducros J., the applicant sought writs of habeas corpus by successive applications. He first applied for such a writ before Boilard J. (the first application). The parties proceeded before the court as if a writ had been issued, that is, as if the prisoner had been produced to the court for a hearing on the merits of his application. In rejecting the application, Boilard J. gave reasons on the merits, thus treating the result as if a judgment had been issued on the return of a writ. That is, Boilard J. proceeded as if the writ had initially been issued, but following an unsuccessful hearing, the prisoner was returned to detention. The first application was appealed to the Court of Appeal unsuccessfully (summarized (1993), 21 W.C.B. (2d) 131), and application for leave to appeal was rejected by this Court both initially ( 4 S.C.R. v) and on a reconsideration.
3 The applicant then filed a further petition for the issuance of a writ of habeas corpus before Greenberg J. (the second application). One of the issues argued was whether there were new “grounds” such that s. 784(3) of the Criminal Code, R.S.C. 1985, c. C-46, permitted a second application for a writ. Greenberg J. held that, since the parties before Boilard J. in the first application acted as if a writ had been issued, s. 784(5) applied to the first application, not s. 784(3). Greenberg J. held that the petition before him was res judicata since all appeals under s. 784(5) were exhausted. Greenberg J. refused the petition to issue a writ of habeas corpus. The applicant unsuccessfully appealed to the Court of Appeal and now seeks an appeal as of right to this Court (File No. 25695).
4 The applicant filed another petition for the issuance of a writ before Boilard J. (the third application). Boilard J. refused to issue the writ and the applicant’s appeal was unsuccessful: (1996), 112 C.C.C. (3d) 376. The applicant seeks an appeal as of right to this Court (File No. 25763).
5 The applicant filed yet another petition for the issuance of a writ before Côté J. (the fourth application). Côté J. refused to issue the writ, an appeal was unsuccessful, and the applicant seeks an appeal as of right to this Court (File No. 25696).
6 The applicant sought extensions of time relating to three notices of appeal filed in respect of the second, third and fourth applications for a writ of habeas corpus which were dismissed. These notices of appeal were filed on the theory that the applicant could appeal as of right from decisions of the Court of Appeal which in each case dismissed his appeal. We dismissed the application to extend time on the ground that there were no appeals as of right in these cases.
7 The statutory foundation for appeals from a refusal of a writ of habeas corpus is contained in s. 784 of the Code, the relevant provisions of which are as follows:
(3) Where an application for a writ of habeas corpus ad subjiciendum is refused by a judge of a court having jurisdiction therein, no application may again be made on the same grounds, whether to the same or to another court or judge, unless fresh evidence is adduced, but an appeal from that refusal shall lie to the court of appeal, and where on the appeal the application is refused a further appeal shall lie to the Supreme Court of Canada.
(5) Where a judgment is issued on the return of a writ of habeas corpus ad subjiciendum, an appeal therefrom lies to the court of appeal, and from a judgment of the court of appeal to the Supreme Court of Canada, with the leave of that Court, at the instance of the applicant or the Attorney General of the province concerned or the Attorney General of Canada, but not at the instance of any other party.
8 These provisions were designed to eliminate a longstanding practice which permitted an applicant who had been refused a writ of habeas corpus to make successive applications to judges of a superior court. The historic procedure with respect to the writ was a two-stage process. The first stage was the issue of the writ to the jailor or other person alleged to be detaining the applicant demanding the production of the body and the document or documents justifying the detention. Compliance with the demand was the return to the writ. The second stage was a determination on the merits as to the lawfulness of the detention. The practice with respect to successive applications related to the first stage only. This practice was apparently justified on the basis of the importance attached to securing a return to the writ so that the lawfulness of the detention could be adjudicated.
9 Sections 784(3) and (5) embody a compromise. If a writ was refused at the first stage and no hearing was had on the merits, then an appeal as of right lay to the court of appeal, and if the appeal failed the appellant was entitled to an appeal as of right to this Court. In return, the unsuccessful applicant could not make successive applications to other judges once the writ was refused by a judge. This was subject to the proviso with respect to fresh evidence. Under s. 784(3) the applicant could exhaust his or her appeals without securing a hearing on the merits. This will occur if the applicant cannot meet the threshold required for the issue of the writ. The required threshold is that there are “probable and reasonable grounds” for the complaint that the detention is unlawful. See R. v. Olson,  1 S.C.R. 296, at p. 298. Section 784(5) sets out the rights of appeal if the writ is issued and a hearing on the merits has been held. In such circumstances, an appeal to this Court lies only with leave.
10 The modern practice, especially where the applicant is represented by counsel, is to collapse the two stages into one. The formal issue of the writ and the return are dispensed with and the merits are argued on the basis of the material relevant to the lawfulness of the detention which the parties choose to file. In some jurisdictions, the rules of court provide a mechanism for the collapse of the two stages. In others it is done on consent of the parties. In my opinion, what is important is that where the appropriate grounds exist there be a hearing on the merits with respect to the lawfulness of the detention. The mechanics of obtaining such a hearing are not a matter of substance. See Olson, supra, at p. 299.
11 In the present case, on consent, the first application was heard on the merits. Moreover, an appeal was heard on the merits pursuant to s. 784(5). Pursuant to that provision, the applicant sought leave to appeal. Leave to appeal was refused and an application for reconsideration was also refused. The applicant has, therefore, had his application determined on the merits and has exhausted his appeals. He cannot, therefore, start over again as if the matter were “tabula rasa”. He cannot be heard to allege that he has been “refused” a writ of habeas corpus and that s. 784(3) applies. Since he has had a hearing on the merits pursuant to a consent procedure which treated the writ as having been issued, the applicable section for the purposes of appeal is s. 784(5). The applicant, therefore, cannot appeal as of right with respect to any of the judgments which dismissed his appeals in the second, third and fourth applications. As we have no jurisdiction to hear appeals as of right, the application to extend the time to appeal suffers the same fate.
12 The applications to extend the time were, therefore, dismissed along with other applications of the applicant which were heard at the same time.
Motions for extension of time to serve and file notices of appeal dismissed.
Solicitors for the applicant: Waissman Laurin Frigon, Montreal.
Solicitor for the respondents: The Attorney General of Canada, Montreal.