In Winnipeg (City of) v. The Neighbourhood Bookstore and Café Ltd., 2019 MBCA 3, the Court of Appeal for Manitoba recently interpreted the new ‘in-house’ appeal routes under The Provincial Offences Act as being more expansive than under the Criminal Code. In contrast with the prior legislation, The Provincial Offences Act creates its own appeal routes, and the Court of Appeal interpreted these new provisions as allowing interlocutory appeals (with leave). This is significant because Manitoba provincial offence matters now attract broader appellate jurisdiction compared to both the previous provincial offences legislation in Manitoba and the current Criminal Code appeal provisions.
The applicant was issued an offence notice under a City bylaw requiring food establishments to have grease interceptors. The applicant retained a lawyer who formerly worked in-house for the City, and the City took the position that this was a conflict of interest given the lawyer’s prior involvement with related legal issues for the City. The Provincial Court judge granted the City’s application to remove counsel. The Court of Queen’s Bench dismissed the appeal, and the applicant sought leave to appeal to the Court of Appeal. Given that an order removing counsel is interlocutory, the Court of Appeal was required as a threshold matter to decide if it had jurisdiction.
The Provincial Offences Act came into force on November 20, 2017 and replaced The Summary Convictions Act. That predecessor legislation incorporated Part XXVII of the Criminal Code (Summary Convictions), including the appeal routes, which are described in Sopinka & Gelowitz on the Conduct of an Appeal, Chapter 3, Part C. Essentially, appeals were limited to final verdicts and other final orders, and did not extend to interlocutory decisions such as the removal of counsel.
The appeal routes under the new provincial offences legislation in Manitoba drop any reference to “final” orders. In addition to appeals from conviction and sentence, a defendant may appeal to the Court of Queen’s Bench from “any other order made by a justice against the defendant under this Act” and “may appeal a decision of the Court of Queen’s Bench to the Court of Appeal, but only with leave of a judge of the Court of Appeal on a question of law alone” (see sections 79(1)(c) and 84).
In Winnipeg (City of), Justice Steel held that an appeal from “any other order” under The Provincial Offences Act is broader than the equivalent language found in the Criminal Code, and thus the general rule against interlocutory appeals that developed in the Criminal Code jurisprudence is not necessarily controlling. Comparing the language, Justice Steel held as follows:
[…] unlike the previous [Summary Convictions Act], section 839 of the Code and its jurisprudence no longer apply to appeals under the [Provincial Offences Act]. The appeal rights in the [Provincial Offences Act] are broader than were previously available. This Court does have the jurisdiction to hear this appeal even though it is not a final order. While it is not always easy to differentiate between interlocutory and final orders, in this case, the order to remove counsel was not determinative of the main issue [… and] was an interlocutory order. [para. 33]
This change to appellate jurisdiction does not appear to have been expressly considered during the legislative debates concerning The Provincial Offences Act. Recognizing that provincial offences legislation in other provinces often narrows appeal rights rather than expanding them, Justice Steel reviewed Hansard for an indication of legislative intent, but she found no comments regarding the appeal procedure. Accordingly, “in the face of explicit wording”, the Court could not “speculate on whether the Legislature intended to expand appeal rights or whether this was unintentional”.
Although Justice Steel found statutory jurisdiction vested in the Court of Appeal, she ultimately denied leave to appeal in Winnipeg (City of). Part of her consideration included the strong policy reasons against interlocutory appeals in criminal cases. As this case was not exceptional, it would have been premature to exercise the Court’s discretion to grant leave to appeal the interlocutory matter.