R. v. Burke
- Citation
- 2017 BCCA 5
- Status
- Judgment
- Jurisdiction
- Canada
- Court
- British Columbia Court of Appeal
- Decision
- 5 January 2017
- Posture
- Criminal Appeal / Application to Dismiss Appeal for Want of Prosecution Under Rule 13(3) (oral Reasons)
- Language
- English
More details
- Court
- British Columbia Court of Appeal
- Decision
- 5 January 2017
- Posture
- Criminal Appeal / Application to Dismiss Appeal for Want of Prosecution Under Rule 13(3) (oral Reasons)
- Language
- English
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The appeal is dismissed under Rule 13(3) because the appellant, after generous and repeated opportunities including adjournments to sell a vehicle to fund transcripts, failed to advance the appeal and acknowledged there was no reasonable prospect of prosecuting it.
Court disposition
Crown application allowed; appeal dismissed for want of prosecution.
Orders
- Appeal dismissed for want of prosecution under Rule 13(3) of the Court of Appeal Rules.
02
Material facts
Parties
Regina
Respondent Counsel: M. StreetJody Matthew Burke
Appellant Counsel: J. Burke (self-represented)Amounts and remedies
- Months Since Conviction: 33
- Months Since First Case Management Conference: 23
03
Procedural history
Posture
Criminal Appeal / Application to Dismiss Appeal for Want of Prosecution Under Rule 13(3) (oral Reasons)
04
Questions and positions
Legal issues
- 01
Whether the appeal should be dismissed for want of prosecution under Rule 13(3) of the Court of Appeal Rules
- 02
Whether the appellant has taken reasonable steps and given realistic prospects to prosecute the appeal after being afforded multiple opportunities
Party arguments
- Applicant
- Crown applied for dismissal for want of prosecution under Rule 13(3) on the basis that the appeal has not advanced despite generous and repeated opportunities to perfect it.
- Respondent
- Appellant explained lack of funds to obtain transcripts and efforts to sell a vehicle to raise funds but ultimately acknowledged there is no reasonable prospect he will be able to prosecute the appeal.
05
Court’s reasoning
Legal principles
- 01
Rule 13(3), Court of Appeal Rules (British Columbia) and appellate practice
An appeal may be dismissed for want of prosecution where the appellant fails to advance the appeal after being given reasonable opportunities to do so.
- 02
Appellate case management principles and practice as applied by the Court of Appeal
Factors informing dismissal include delay since conviction, time since notice of appeal, repeated adjournments, failure to obtain necessary transcripts, and the appellant's acknowledgement of inability to prosecute.
06
Ratio, limits and disposition
Ratio decidendi
The appeal is dismissed under Rule 13(3) because the appellant, after generous and repeated opportunities including adjournments to sell a vehicle to fund transcripts, failed to advance the appeal and acknowledged there was no reasonable prospect of prosecuting it.
Obiter and limits
- Court noted the appellant had been given multiple chances including permission to sell a valuable vehicle to raise funds.
- Delay metrics recorded: 33 months after conviction and 23 months after the first case management conference following filing of the notice of appeal.
Court disposition
Crown application allowed; appeal dismissed for want of prosecution.
- Appeal dismissed for want of prosecution under Rule 13(3) of the Court of Appeal Rules.
Source and reliance status
British Columbia Court of Appeal · 5 January 2017
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
British Columbia Court of Appeal
Judgment· 5 January 2017
2017 BCCA 5 R. v. Burke
COURT OF APPEAL FOR BRITISH COLUMBIA Citation: R. v. Burke, 2017 BCCA 5 Date: 20170105 Docket: CA42263 Between: Regina Respondent And Jody Matthew Burke Appellant Before: The Honourable Madam Justice Newbury The Honourable Madam Justice Kirkpatrick The Honourable Mr. Justice Savage On appeal from: orders of the Supreme Court of British Columbia, dated April 4, 2014 (conviction) and October 8, 2014 (sentence) (R. v. Burke, 2014 BCSC 2082, New Westminster Docket 76626) Oral Reasons for Judgment Counsel appearing In Person with Probation Officer via teleconference: J. Burke Counsel for the Respondent: M. Street Place and Date of Hearing: Vancouver, British Columbia January 5, 2017 Place and Date of Judgment: Vancouver, British Columbia January 5, 2017 Summary: Crown application for dismissal of appeal for want of prosecution to Rule 13(3) granted. [1] KIRKPATRICK J.A.: This is the third Rule 13(3) application for an order that Mr. Burke's conviction appeal be dismissed for want of prosecution. [2] At the first application on May 7, 2016, the Court noted that Mr. Burke had been given generous opportunities to perfect his appeal. The problem throughout has been lack of money so that he can obtain transcripts and move the appeal along. At the May hearing Mr. Burke was given one last opportunity which would permit him to sell a valuable vehicle and use the proceeds to move the case
along. [3] On October 21, 2016, the Rule 13(3) application was again adjourned to facilitate Mr. Burke's efforts to sell the vehicle. [4] Today, 33 months after his conviction and 23 months after his first case management conference following the filing of his notice of appeal on October 17, 2014, the appeal has not advanced. [5] Today Mr. Burke acknowledges that there is no reasonable prospect that he will be able to prosecute his appeal. I would grant the Crown's application and dismiss the appeal for want of prosecution. [6] NEWBURY J.A.: I agree. [7] SAVAGE J.A.: I agree. [8] NEWBURY J.A.: The Crown's application is allowed. "The Honourable Madam Justice Kirkpatrick"
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