Date: 19980217
Docket: T-879-96
OTTAWA, ONTARIO, THE 17th DAY OF FEBRUARY 1998
PRESENT: THE HONOURABLE MR. JUSTICE RICHARD
BETWEEN:
EDWARD ROY SCOTT
Plaintiff
- and -
HER MAJESTY THE QUEEN IN RIGHT OF CANADA
Defendant
ORDER AND REASONS FOR ORDER
UPON an application on behalf of the plaintiff for an order fixing or allowing the plaintiff further time to file a notice of appeal against the Order of the Honourable Madame Justice Tremblay-Lamer dated March 18, 1997;
IT IS ORDERED THAT:
I am prepared to accept that the moving party, the plaintiff, had a genuine intention to appeal the decision of the Trial Division to the Court of Appeal and acted as diligently as he could in the circumstances1. He has explained the delay of some 5 months.
In his statement of claim, the plaintiff claimed damages and costs against the defendant for holding the plaintiff in custody seven days past his statutory release date.
The affidavit evidence shows that the sentencing Judge imposed a sentence in conflict with section 149 of the Criminal Code. This was explained to the plaintiff at the beginning of his sentence and he was again reminded of the error, but did nothing to correct it. He obtained his release within 24 hours of applying for habeas corpus.
In granting the respondent's motion for summary judgment and dismissing the action against Her Majesty The Queen, the motions judge gave the following reason:
| Considering that the defendant has no power to vary the sentence set out in the Warrant of Committal, there is no genuine issue for trial. |
The plaintiff has not satisfied me that there is an arguable case.
Accordingly, the application for an extension of the period of time within which an appeal may be brought is denied.
__________________________
Judge
__________________1 See Bullock v. Canada, (December 3, 1997), A-706-96 (F.C.A.); [1997] F.C.J. No. 1661 (QL).