Canada Judgment

Supreme Court of Canada

R. v. Gellvear

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Source document

01

Holding and result

Paragraphs 3–24 of the appellant's factum were struck because they did not address the legal issue raised in the Court of Appeal dissent; there was therefore no appeal before this Court on that point, and because the appellant had been previously informed that leave to raise those matters was required and did not seek it, the Court refused to allow the belated argument and dismissed the appeal.

Court disposition

Appeal dismissed

Orders

  • Motion of the Crown to strike paragraphs 3 to 24 of the appellant's factum granted
  • No appeal lies on the legal issue raised in the Court of Appeal dissent because the factum did not address it
  • Appellant's late request for leave to argue the matters in paragraphs 3 to 24 denied
  • Appeal dismissed

02

Material facts

Parties

Sean Michael Gellvear

Appellant Counsel: Ruth Reimer

Her Majesty The Queen

Respondent Counsel: Arnold Schlayer

Amounts and remedies

  • Case Number: 25,973
  • Report Page: 1,218

03

Procedural history

  1. Posture

    Criminal Appeal to Supreme Court of Canada / On Appeal From the Alberta Court of Appeal; Motion to Strike Paragraphs of Factum; Final Dismissal of Appeal

04

Questions and positions

Legal issues

Party arguments

Applicant
The appellant sought to argue the matters set out in paragraphs 3–24 of the factum before this Court despite those paragraphs not addressing the legal issue raised in the Court of Appeal dissent; implicitly sought leave at the hearing stage to present those arguments.
Respondent
The Crown moved to strike paragraphs 3–24 because they did not deal with the legal issues raised in the dissent, so there was no appeal before the Court on that issue; further, the appellant had been informed by order that leave was required and did not seek leave, so the late attempt to raise the matters must be denied.

05

Court’s reasoning

  1. 01

    Supreme Court practice as applied in R. v. Gellvear ([1998] 1 S.C.R. 1218) and the Court's procedural order

    An appellant's factum must address the legal issues properly before the Court; material that does not deal with the issues on appeal may be struck.

  2. 02

    Order of Justice L'Heureux‑Dubé and Supreme Court procedural rules, applied in this judgment

    Leave is required to introduce new grounds or issues when an earlier order has specified leave was necessary; failure to seek leave precludes consideration of those matters at a late stage.

  3. 03

    Supreme Court of Canada appellate practice as stated in the reasons of Cory J.

    The Court will not permit belated expansion of the issues where doing so would undermine orderly appellate procedure and fairness to the respondent.

06

Ratio, limits and disposition

Ratio decidendi

Paragraphs 3–24 of the appellant's factum were struck because they did not address the legal issue raised in the Court of Appeal dissent; there was therefore no appeal before this Court on that point, and because the appellant had been previously informed that leave to raise those matters was required and did not seek it, the Court refused to allow the belated argument and dismissed the appeal.

Obiter and limits

  • At this late stage there is nothing further the Court can do.
  • Leave was required by prior order of Justice L'Heureux‑Dubé to present the additional arguments.

Court disposition

Appeal dismissed

  • Motion of the Crown to strike paragraphs 3 to 24 of the appellant's factum granted
  • No appeal lies on the legal issue raised in the Court of Appeal dissent because the factum did not address it
  • Appellant's late request for leave to argue the matters in paragraphs 3 to 24 denied
  • Appeal dismissed

Source and reliance status

Supreme Court of Canada · 23 June 1998

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Judgment text

The complete available source text.

Source document

Supreme Court of Canada

Judgment· 23 June 1998

[1998] 1 SCR 1218

R. v. Gellvear Collection Supreme Court Judgments Date 1998-06-23 Report [1998] 1 SCR 1218 Case number 25973 Judges Cory, Peter deCarteret; McLachlin, Beverley; Iacobucci, Frank; Major, John C.; Bastarache, Michel On appeal from Alberta Subjects Criminal law Notes SCC Case Information: 25973 Decision Content R. v. Gellvear, [1998] 1 S.C.R. 1218 Sean Michael Gellvear Appellant v. Her Majesty The Queen Respondent Indexed as: R. v. Gellvear File No.: 25973. 1998: June 23. Present: Cory, McLachlin, Iacobucci, Major and Bastarache JJ. on appeal from the court of appeal for alberta Criminal law ‑‑ Appeals ‑‑ Supreme Court of Canada ‑‑ Accused appealing to Supreme Court of Canada on basis of dissent in Court of Appeal ‑‑ Factum not dealing with issue of law raised by dissenting judge ‑‑ Appeal dismissed. APPEAL from a judgment of the Alberta Court of Appeal (1997), 196 A.R. 18, 141 W.A.C. 18, dismissing the accused’s appeal from his conviction by Demong Prov. Ct. J. on charges of robbery, unlawful disguise and possession of a weapon for an unlawful purpose. Appeal dismissed. Ruth Reimer, for the appellant. Arnold Schlayer, for the respondent. //Cory J.// The judgment of the Court was delivered orally by 1 Cory J. ‑‑ The motion brought by the respondent Crown to strike out paragraphs 3 to 24 of the appellant’s factum must be granted since they do not deal with the legal issues raised

in the dissent of Berger J.A. As a result there is no appeal before us arising from the issue of law raised in the dissent. 2 The appellant (respondent in the motion) now seeks leave to appeal on the matters that were raised in the factum in paragraphs 3 to 24. However, the appellant had been informed in the order made by Justice L’Heureux‑Dubé that leave would be required to present that argument and leave was not sought. 3 At this late stage there is nothing further that the Court can do and the appeal is therefore dismissed. Judgment accordingly. Solicitor for the appellant: Ruth Reimer, Calgary. Solicitor for the respondent: The Attorney General for Alberta, Edmonton.

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Authorities

Authorities used by the court

Cases, legislation, regulations, and constitutional provisions identified in the available record.

R. v. Gellvear, [1998] 1 S.C.R. 1218

Case cited

Alberta Court of Appeal decision (1997), 196 A.R. 18, 141 W.A.C. 18

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