Canada Judgment

Supreme Court of Canada

Neal v. A.G. (Sask.)

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Source document

01

Holding and result

Because the Crown sought and obtained an ex parte extension of time without giving the accused notice, the District Court judge was deprived of jurisdiction to grant the extension; the extension order was invalid and must be set aside, and the appeal is allowed.

Court disposition

Appeal allowed

Orders

  • Order for extension of time obtained ex parte is set aside
  • Appeal allowed with costs, but with one counsel fee only

02

Material facts

Parties

Lyle Neal

Appellant Counsel: M.C. Shumiatcher, Q.C.; E.J. Neufeld

Attorney General of Saskatchewan

Respondent Counsel: S. Kujawa, Q.C.

P.J. Dielschneider

Respondent (district Court Judge)

Amounts and remedies

  • Statutory Appeal Period Days: 30

03

Procedural history

  1. Posture

    Summary Conviction Appeal / Appeal to the Supreme Court of Canada From the Court of Appeal for Saskatchewan

04

Questions and positions

Legal issues

Party arguments

Applicant
The accused argued the Crown failed to pursue the trial de novo within the prescribed 30‑day period and that the subsequent ex parte extension application, granted without giving the accused notice, deprived the District Court judge of jurisdiction and was therefore invalid.
Respondent
The Crown argued the judge had the power to grant an extension and that the extension obtained ex parte was valid and should be allowed to permit the Crown to proceed with the trial de novo.

05

Court’s reasoning

  1. 01

    Neal v. A.G. (Sask.), [1977] 2 S.C.R. 624

    A statutory appeal period must be observed and the Crown must pursue the prescribed appeal (trial de novo) within that period unless a valid extension is granted.

  2. 02

    Neal v. A.G. (Sask.), [1977] 2 S.C.R. 624

    An ex parte order affecting an accused's rights that could be contested requires notice to the accused; failure to give notice can deprive the court of jurisdiction to make the order.

06

Ratio, limits and disposition

Ratio decidendi

Because the Crown sought and obtained an ex parte extension of time without giving the accused notice, the District Court judge was deprived of jurisdiction to grant the extension; the extension order was invalid and must be set aside, and the appeal is allowed.

Court disposition

Appeal allowed

  • Order for extension of time obtained ex parte is set aside
  • Appeal allowed with costs, but with one counsel fee only

Source and reliance status

Supreme Court of Canada · 10 May 1977

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Judgment text

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Source document

Supreme Court of Canada

Judgment· 10 May 1977

[1977] 2 SCR 624

Neal v. A.G. (Sask.) Collection Supreme Court Judgments Date 1977-05-10 Report [1977] 2 SCR 624 Judges Laskin, Bora; Martland, Ronald; Judson, Wilfred; Ritchie, Roland Almon; Spence, Wishart Flett; Pigeon, Louis-Philippe; Dickson, Robert George Brian; Beetz, Jean; de Grandpré, Louis-Philippe On appeal from Saskatchewan Subjects Action Decision Content Supreme Court of Canada Neal v. A.G. (Sask.), [1977] 2 S.C.R. 624 Date: 1977-05-10 Lyle Neal Appellant; and The Attorney General of Saskatchewan and His Honour P.J. Dielschneider Respondents. 1977: May 10. Present: Laskin C.J. and Martland, Judson, Ritchie, Spence, Pigeon, Dickson, Beetz and de Grandpré JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR SASKATCHEWAN Practice—Accused acquitted on summary conviction charge—Failure of Crown to pursue appeal by way of trial de novo within prescribed period—Ex parte order for extension of time—District Court judge deprived of jurisdiction to make extension order. APPEAL from a judgment of the Court of Appeal for Saskatchewan denying an application to quash an ex parte order for extension of time granted by Dielschneider D.C.J. Appeal allowed. M.C. Shumiatcher, Q.C., and E.J. Neufeld, for the appellant. S. Kujawa, Q.C., for the respondents. The judgment of the Court was delivered orally by THE CHIEF JUSTICE—We are all of the opinion that this appeal should be allowed and the order for extension of time obtained ex parte by the Crown set aside. In this case, the accused was acquitted on a summary conviction charge and the Crown failed to pursue its appeal by way of trial de novo within the prescribed thirty-day period. It moved thereafter ex parte, for an extension of time, which was granted. In our view, the accused should have been given notice of the application for extension, and the failure to do this deprived the District Court judge of jurisdiction to make the extension order. The appeal is accordingly allowed with costs but with one counsel fee only. Judgment accordingly. Solicitors for the appellant: Shumiatcher, Findlay & Neufeld, Regina. Solicitor for the respondents: H.M. Ketcheson, Regina.

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