[1997] 3 F.C. 643
A-372-97
Richard Sauvé (Respondent) (Plaintiff)
v.
The Chief Electoral Officer of Canada, the Solicitor General of Canada, the Attorney General of Canada (Appellants) (Defendants)
and
Sheldon McCorrister, Chairman, Lloyd Knezacek, Vice Chairman, on their own behalf and on behalf of the Stony Mountain Institution Inmate Welfare Committee, and Chair Woodhouse, Chairman, Aaron Spence, Vice Chairman, on their own behalf and on behalf of the Native Brotherhood Organization of Stony Mountain Institution, and Serge Belanger, Emile A. Bear and Randy Opoonechaw (Respondents) (Plaintiffs)
v.
The Attorney General of Canada (Appellant) (Defendant)
Indexed as: Sauvé v. Canada (Chief Electoral Officer) (C.A.)
Court of Appeal, Hugessen, Stone and McDonald, JJ.A.—Ottawa, May 21 and 22, 1997.
Practice — Judgments and orders — Stay of execution — Application to stay, pending appeal, effect of declaration Canada Elections Act provision denying certain convicts right to vote in federal Elections unconstitutional — Motions Judge did not err in applying tripartite test set out by S.C.C. in RJR—McDonald Inc. v. Canada (Attorney General) — In absence of error of law, appellate court cannot interfere with discretionary order of judge — Appeal dismissed.
CASES JUDICIALLY CONSIDERED
APPLIED:
Canderel Ltd. v. Canada, [1994] 1 F.C. 3 [1993] 2 C.T.C. 213; (1993) 93 DTC 5357; 157 N.R. 380 (C.A.); RJR—MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311; (1994), 111 D.L.R. (4th) 385; 54 C.P.R. (3d) 114; 164 N.R. 1; 60 Q.A.C. 241.
APPEAL from a Trial Division order ([1997] 3 F.C. 628 denying an application to stay, pending appeal, the effect of a Trial Division judgment ([1996] 1 F.C. 857 (1995), 132 D.L.R. (4th) 136; 106 F.T.R. 241) declaring paragraph 51(e) of the Canada Elections Act unconstitutional. Appeal dismissed.
COUNSEL:
Glenn D. Joyal, Gerald L. Chartier for appellants (defendants).
Fergus J. O’Connor for respondent (plaintiff) Sauvé.
Arne Peltz for respondents (plaintiffs) McCorrister et al.
SOLICITORS:
Deputy Attorney General of Canada for appellants (defendants).
The following are the reasons for judgment of the Court delivered orally in English by
McDonald J.A.: Having heard the able arguments of counsel, we remain unconvinced that the Motions Judge made any reviewable error [[1996] 1 F.C. 857 (T.D.)]. The granting of a stay of judgment is a discretionary matter for the Motions Judge. As was held by this Court in Canderel Ltd. v. Canada, [1994] 1 F.C. 3 at page 9, in the absence of an error of law, this Court cannot interfere with a discretionary order of a judge.
The Motions Judge correctly turned his mind to the tripartite test set out by the Supreme Court of Canada in RJR—MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311. He found that the Crown failed on both the second and third branches of that test. We have not been persuaded that the Motions Judge erred in applying the test. Even if this Court’s overall decision may have been different, it is not open to an appellate court to interfere where the Motions Judge, in exercising his discretion, made no error in law.
The appeal is dismissed with costs.