Case: Holzbauer v. British Columbia (Attorney General), 2021 BCCA 458
Keywords: bylaw conviction; private prosecution; jurisdiction of the Court of Appeal
The Respondent, Mr. Holzbauer, is engaged in a “protracted dispute” with the Regional District of Kitimat-Stikine (“RDKS”) concerning certain structures he built on his property. The Respondent is convicted of a bylaw infraction in relation to these structures in 2014, and convicted of two additional bylaw infractions (relating to the same structures) in 2017. The Respondent appeals two of these convictions at the Supreme Court of British Columbia. The appeals are dismissed in 2017. The Respondent then seeks Leave to Appeal to the Court of Appeal in 2021. (See para. 5).
Following his unsuccessful appeal to the Supreme Court of British Columbia, the Respondent also swears four “private informations” (pursuant to s. 504 of the Criminal Code) against RDKS bylaw officers involved in the investigation and prosecution of the infractions. Three of these private informations are stayed by the Crown; a Provincial Court Judge declines to issue process on the fourth. (See paras. 6-7; see also s. 507.1(1) and 579 of the Criminal Code).
The Respondent files a “free-standing” Charter application in the Supreme Court of British Columbia, alleging, inter alia, that his ss. 2(a) and (b), 3, 7, 8, 11(d), and 11(g) Charter rights were violated through an abuse of process related to the investigation and prosecution of the bylaw infractions, and the failure of the Provincial Court Judge to issue process. The application also alleges that ss. 507.1 and 579 of the Criminal Code (which set out the procedure applicable to a “private information”) are unconstitutional. (See para. 9).
The Attorney General of British Columbia (the “Applicant”) applies to summarily dismiss the Respondent’s “free-standing” Charter application on the grounds it fails to identify a valid cause of action or valid criminal proceedings/procedure under which it could be advanced. (See para. 11). The Respondent’s Charter application is dismissed by the British Columbia Supreme Court (i.e. the Attorney General’s application to dismiss is successful). (See para. 12; Holzbauer v British Columbia (Attorney General), 2021 BCSC 1354 (CanLII).
The Respondent then appeals to the Court of Appeal. The Applicant seeks an order quashing the Respondent’s appeal for want of jurisdiction. The Court of Appeal grants the application and quashes the Respondent’s appeal. (See para. 23).
For reference, s. 504 of the Criminal Code provides that “[a]ny one who, on reasonable grounds, believes that a person has committed an indictable offence may lay an information”. This provides a means for ‘private prosecution’ in Canada, which the Respondent herein pursued. Section 507.1(1) sets out the applicable procedure for Courts to follow upon receipt of a “private information”:
A justice who receives an information laid under section 504, other than an information referred to in subsection 507(1), shall refer it to a provincial court judge or, in Quebec, a judge of the Court of Quebec, or to a designated justice, to consider whether to compel the appearance of the accused on the information.
Section 579 of the Criminal Code permits the Attorney General to direct a stay of proceedings.
This decision is interesting because the Court of Appeal affirmed its jurisdiction to hear an appeal in criminal matters is entirely conferred by statute. (See para. 17; citing R. v. Meltzer, 1989 CanLII 68 (SCC) at p. 1773; R. v. Awashish, 2018 SCC 45 at para. 10; R. v. Holland, 2019 BCCA 417 at para. 5).
For the Court of Appeal, the Court of Appeal Act, R.S.B.C. 1996, c. 77 does not provide a “jurisdictional foundation” for an appeal or a review in a criminal matter (i.e. a matter relating to ss. 507.1 or 579 of the Criminal Code); and, unlike a court of original or ‘plenary’ jurisdiction, the Court of Appeal lacks the power to grant “prerogative relief” with respect to proceedings in the Supreme Court of British Columbia. (See para. 17; citing Holland at para. 14; R. v. Lena, 2003 BCCA 167 at para. 7).
Since the Respondent’s challenge to the Crown’s decision to stay his “private informations” is a criminal matter, the Court of Appeal could not grant the relief being sought: “[t]he Code does not provide for an appeal from a decision made by the Crown to stay a private information, nor does it provide for an appeal from the decision of a provincial court judge not to issue process on a private information.” (See para. 18).
The Court of Appeal described the “proper procedure” as follows:
The proper procedure for challenging a Crown decision to stay a private information pursuant to s. 579 of the Code is to bring an application for certiorari pursuant to s. 774 of the Code and Rules 2(1) and 4(1) of the Criminal Rules of the Supreme Court of British Columbia, S.I./97-140 [Criminal Rules]: Holland No. 2 at para. 25. A challenge to a provincial court judge’s refusal to issue process under s. 507.1 must be brought by means of an application for mandamus and certiorari: see Code s. 507.1(5); R. v. Grinshpun, 2004 BCCA 579 at para. 10; Ambrosi v. British Columbia (Attorney General), 2012 BCSC 1261 at para. 40, aff’d 2014 BCCA 123, leave to appeal ref’d  S.C.C.A. No. 35979. (See para. 19).
In circumstances where the Supreme Court of British Columbia dismisses,
- a private prosecutor’s application for certiorari regarding a decision made by the Crown to stay a private information under s. 579; or
- an application for mandamus and certiorari brought from the decision of a provincial court judge not to issue process under s. 507.1,
the Court of Appeal has jurisdiction pursuant to s. 784 of the Criminal Code. (See para. 20).
In this case, the Respondent’s Charter application was “not an application for certiorari brought pursuant to the Criminal Rules”, nor was it “an application for mandamus”. As such, s. 784 had “no application in this context” and the Court of Appeal lacked jurisdiction to hear the appeal. (See para. 21). Finally, the Court of Appeal clarified that one may not bring a “free-standing Charter application” for the purpose of overturning bylaw convictions. Rather, an appeal must be filed in accordance with ss. 101 and 102(a) of the Offence Act, R.S.B.C. 1996, c. 338. (See para. 22).
Counsel for the Appellant, appearing in person: Martin Holzbauer
Counsel for the Respondent: David Layton, Q.C. (Criminal Appeals and Special Prosecutions, Vancouver)