R. v. Gellvear
- Citation
- [1998] 1 SCR 1218
- Status
- Judgment
- Jurisdiction
- Canada
- Court
- Supreme Court of Canada
- Decision
- 23 June 1998
- 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
- Language
- English
More details
- Court
- Supreme Court of Canada
- Decision
- 23 June 1998
- 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
- Language
- English
On this page
Professional case brief
Research organized from the available case record
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 ReimerHer Majesty The Queen
Respondent Counsel: Arnold SchlayerAmounts and remedies
- Case Number: 25,973
- Report Page: 1,218
03
Procedural history
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
- 01
Whether paragraphs 3–24 of the appellant's factum should be struck for failing to address the legal issue raised in the dissent of Berger J.A.
- 02
Whether the appellant could belatedly seek leave to raise the issues set out in paragraphs 3–24 after being informed leave was required
- 03
Whether the Court could entertain new arguments at a late stage without prior leave
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
Legal principles
- 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.
- 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.
- 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
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.
Supreme Court of Canada
Judgment· 23 June 1998
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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