Court of Appeal

Nova Scotia Court of Appeal

Citation: R. v. Cummings, 2023 NSCA 85

Date: 20231130

Docket: CA 519289

Registry: Halifax

Between:

 

Wanda Cummings

Appellant

v.

 

His Majesty the King

Respondent

Judge:	The Honourable Justice Anne S. Derrick
Appeal Heard:	October 19, 2023, in Halifax, Nova Scotia
Subject:	Judicial review for certiorari and prohibition in relation to criminal charges before the Provincial Court of Nova Scotia. Civil Procedure Rules 64.03 and 7.05. Vexatious litigant. Parliament’s exclusive jurisdiction over criminal law and procedure. s. 784 of the Criminal Code.
Summary:	The appellant filed a Notice of Judicial Review in the Supreme Court of Nova Scotia for certiorari and prohibition in relation to criminal charges proceeding through the Provincial Court of Nova Scotia. She spuriously claimed the Provincial Court had no jurisdiction over her or the offences with which she was charged. The motions judge found her Notice was filed out of time and dismissed it. She appealed from the dismissal. She had unsuccessfully sought judicial review in the past in very similar circumstances and had failed to obtain relief via appeal. The respondent brought a motion to have the appellant declared a vexatious litigant in this Court.
Issues:	(1)        Did the motions judge correctly interpret the Civil Procedure Rules when he dismissed the appellant’s Notice of Judicial Review?   (2)        Can the appellant be declared a vexatious litigant in this Court where the matter originates from criminal proceedings?
Result:	Appeal dismissed. The respondent’s motion to have the appellant declared a vexatious litigant in this Court is dismissed. The appellant’s Notice of Judicial Review was brought pursuant to Part XXVI of the Criminal Code and Civil Procedure Rule 64. CPR 64.03(3) provides that certain provisions of CPR 7 are applicable, including CPR 7.05. Rules 64.03(2) and 7.05 stipulate the time requirements for filing a notice. The motions judge was correct in his interpretation of the Rules and his determination the appellant had filed her Notice out of time. The appellant’s other grounds of appeal were wholly without merit.   The Court of Appeal has inherent jurisdiction to control its own processes but is otherwise a statutory court. The appellant’s appeal was a criminal matter, regulated as a matter of procedure by the Criminal Code and the Nova Scotia Civil Procedure Rules. There is no authority in the Judicature Act, R.S., c. 240 or the Civil Procedure Rules that would allow for the circumvention of the doctrine of separation of powers and Parliament’s exclusive jurisdiction under s. 91(27) of the Constitution Act, 1867 over criminal law and procedure. That exclusive jurisdiction and the appellant’s statutory right of appeal under the Criminal Code precluded this Court granting the respondent’s motion.

 

 

Nova Scotia Court of Appeal

Citation: R. v. Cummings, 2023 NSCA 85

Date: 20231130

Docket: CA 519289

Registry: Halifax

Between:

Wanda Cummings

Appellant

v.

His Majesty the King

Respondent

 

Judges:	Bourgeois, Derrick, Beaton, JJ.A.
Appeal Heard:	October 19, 2023, in Halifax, Nova Scotia
Held:	Appeal dismissed, per reasons for judgment of Derrick, J.A.; Bourgeois and Beaton, JJ.A. concurring. Respondent’s Motion dismissed, per reasons for judgment of Derrick, J.A.; Bourgeois and Beaton, JJ.A. concurring.
Counsel:	Wanda Cummings, appellant in person Mark A. Scott, K.C., for the respondent

 

Reasons for judgment:

Introduction

[1]             Wanda Cummings appeals her failed application for judicial review. On October 26, 2022, in an oral decision on a motion for Date and Directions, Justice Scott Norton of the Nova Scotia Supreme Court, dismissed Ms. Cummings’ application for certiorari and prohibition in relation to criminal charges then proceeding through the Provincial Court of Nova Scotia. Justice Norton found Ms. Cummings’ Notice of Judicial Review was out of time: she had filed it on October 5, 2022, more than 25 days after the decisions she was attacking. He noted the dates: April 25, 2019; November 12, 2019[1]; December 28, 2019; December 30, 2019; December 7, 2021; and August 11, 2022 and that each decision, with the exception of August 11, was made in Ms. Cummings’ presence.

[2]             Ms. Cummings’ Notice of Judicial Review was filed on October 5, 2022. I have attached it as Appendix “A” to these reasons. Invoking Civil Procedure Rule 7.05, Justice Norton held:

…In my view, the decisions to be reviewed as listed in the Notice of Judicial Review are beyond the time limits required by the Rules, and accordingly this Court does not have the jurisdiction to entertain them. And accordingly, the Notice of Judicial Review is dismissed.

[3]             The Provincial Court had been dealing with a number of Informations laid between April 24, 2019 and May 29, 2022 that charged Ms. Cummings with offences under the Criminal Code, mostly breaches. In her Notice of Judicial Review she sought to have the reviewing court: (1) declare that the Provincial Court of Nova Scotia had lost jurisdiction over her and the offences “for informations dating between 25 April 2019[2] and 29 May 2022”; and (2) make an order “in the nature of certiorari quashing all informations, warrants, undertakings, and recognizances which are null and void”.

[4]             In her same Notice, Ms. Cummings was also seeking certiorari and prohibition in relation to decisions made in the Provincial Court by Judge Brad Sarson on August 22 and September 27, 2022. Ms. Cummings had made a motion before him to withdraw guilty pleas entered on December 7, 2021. She sought to derail the application by arguing Judge Sarson had no jurisdiction to hear it.

[5]             Ms. Cummings’ challenge to the Provincial Court proceedings of August 22, 2022 was also out of time under Civil Procedure Rule 7.05. Justice Norton did not specifically deal with whether there was a timeliness issue under the Rules that impacted September 27. He dismissed the Notice of Judicial Review in relation to all the decisions referenced in it.

[6]             Ms. Cummings’ grounds of appeal, which are contained in her Notice of Appeal attached as Appendix “B” to these reasons are entirely without merit. Justice Norton made no error in dismissing the Notice of Judicial Review. He was correct in finding the enumerated decisions between April 25, 2019 and August 22, 2022 were made more than 25 days before Ms. Cummings filed her application on October 5, 2022. As for judicial review of the decision of September 27, 2022, there is no basis on which it could succeed. Ms. Cummings’ arguments about the Provincial Court’s lack of jurisdiction are without any foundation in law.

[7]             I will be noting that Ms. Cummings has made these same specious arguments before and had them summarily dismissed.

[8]             For the reasons that follow, I would dismiss this appeal. In addition, I will address the respondent Crown’s motion to have this Court declare Ms. Cummings a vexatious litigant. As I will explain, I have concluded that motion cannot succeed.

Justice Norton’s Order

[9]             Justice Norton’s Order dismissing Ms. Cummings’ Notice of Judicial Review reads:                                     

UPON IT APPEARING:

1.         The Applicant filed a Notice of Judicial Review on October 12, 2022[3].

2.         Civil Procedure Rule 7.05(1) provides that:

a.       A person may seek judicial review of a decision by filing a notice for judicial review before the earlier of the following:

b.      Twenty-five days after the day the decision is communicated to the person;

c.       Six months after the day the decision is made

3.         The seven Decisions sought to be reviewed were all communicated to the Applicant more than 25 days before the Notice of Judicial Review was filed.

4.         The matter came before the court for a Motion for Directions on October 26, 2022.

AND UPON reviewing the documents filed on behalf of the Applicant and hearing from the Applicant and counsel for the Respondent;

IT IS HEREBY ORDERED THAT:

1.         The Notice for Judicial Review is dismissed as being beyond the time limit for filing under Rule 7.05.

DATED at Halifax, Nova Scotia the 2^nd day of December, 2022.

[10]         Justice Norton identified Ms. Cummings’ failure to seek judicial review in accordance with the time limits under the Civil Procedure Rules as the threshold issue before him. He stated at the start of the hearing: “So the first question that arises for me, Ms. Cummings, is the timing of the filing of your Notice for Judicial Review”.

[11]         The context out of which Ms. Cummings’ Notice of Judicial Review arose is relevant to her appeal and the Crown’s motion. The relevant proceedings are summarized below.

A Summary of the Relevant Provincial Court Proceedings

[12]         Ms. Cummings has an extensive history of appearances in the Provincial Court during the period of 2019 through 2023. My focus is on the dates Ms. Cummings identified in her Notice and the decisions she says were made. To reiterate, these dates are: April 25, 2019; November 12, 2019; December 28, 2019; December 30, 2019; December 7, 2021; August 11, 2022; August 22, 2022 and September 27, 2022.

[13]         My description of the proceedings is taken from the record filed by Ms. Cummings in support of her appeal. The record indicates the Crown elected to proceed summarily on all Ms. Cummings’ charges, giving the Provincial Court exclusive jurisdiction over them.

          April 25, 2019

[14]         Ms. Cummings was charged on April 24, 2019 with offences under ss. 140(1)(c) and 811 of the Criminal Code. The s. 811 charge was a breach of a recognizance dated May 29, 2018. On April 25, 2019 Ms. Cummings appeared in Provincial Court before Judge Frank Hoskins (as he then was) and consented to release on her own recognizance with a return date of May 28, 2019. Conditions included keeping the peace and being of good behaviour, not to consume alcohol, and not to call any emergency services unless for the purposes of a true emergency. 

          November 12, 2019

[15]         On November 12, 2019 an Information was sworn charging Ms. Cummings with two s. 145(3) breaches of her April 25, 2019 recognizance. The offences were alleged to have been committed on November 6, 2019.

          December 28, 2019

[16]         Following her consent release on April 25, 2019, Ms. Cummings accumulated a series of Criminal Code breach charges related to her recognizance. On December 28, she was arraigned before a Justice of the Peace on two s. 145(5) breaches. The Justice of the Peace remanded her to Monday, December 30, 2019 for a show cause hearing.

          December 30, 2019

[17]         On December 30, Ms. Cummings appeared in Provincial Court before Judge Theodore Tax. She was represented by counsel. The Crown was opposed to her release. Ms. Cummings’ counsel advised the court she had been unable to put together a release plan and was “asking to have it put over until January 10^th, 2020 for a show cause”. Crown counsel indicated he would be seeking bail revocation on other Informations at that same time.

          December 7, 2021

[18]         Ms. Cummings appeared in Provincial Court before Judge Marc Chisholm on December 7, 2021 to deal with five Informations alleging offences contrary to ss. 811, 140(1)(c), 145(3) and 145(2) of the Criminal Code. She was represented by counsel. She entered guilty pleas to three breaches of her recognizance of April 25, 2019. The offences were committed on November 6, 2019, November 18, 2019 and December 28, 2019. Judge Chisholm confirmed with Ms. Cummings that her pleas were informed and voluntary. Sentencing was scheduled for March 16, 2022. It was anticipated the remaining charges would be disposed of at that time.

          August 11, 2022

[19]         On August 11, 2022, Ms. Cummings was scheduled to appear before Judge Brad Sarson in Provincial Court by telephone. The appearance was to have addressed the status of applications Ms. Cummings had brought seeking to: withdraw her guilty pleas; advance a Charter argument; consolidate the seven Informations before the Provincial Court and quash all Informations for lack of jurisdiction. Unbeknownst to the judge who set the date, Judge Sarson had vacation scheduled for August 11 and was not presiding on that date.

[20]         Judge Sarson’s unavailability on August 11 resulted in Ms. Cummings’ matter being sent into Judge Alanna Murphy’s court. Ms. Cummings did not manage to connect by telephone. After a very brief exchange with Crown counsel, Judge Murphy adjourned the matter for a status report to August 22 when Judge Sarson would be back from vacation.

          August 22, 2022

[21]         Ms. Cummings was before Judge Sarson on August 22 for a status update on her application to withdraw her December 7, 2021 guilty pleas. Judge Sarson intended to deal with this application before the others Ms. Cummings had filed. She said she was actively trying to find counsel to represent her. October 25, 2022 was set for the hearing of the application. September 27, 2022 was set for a further status report.

          September 27, 2022

[22]         On September 27, 2022 Ms. Cummings told Judge Sarson that in her opinion he did not have the jurisdiction to hear the application to withdraw her guilty pleas. When asked if she wished to proceed with her application, scheduled for October 25, Ms. Cummings responded that she wanted to proceed with her certiorari application in the Nova Scotia Supreme Court. She said the Supreme Court would “have a look at the issue of jurisdictional error preceding the wrongful entry of the guilty pleas”.

[23]         Judge Sarson pressed Ms. Cummings to answer his question about whether she was going ahead with the application to withdraw. Her response remained the same: the judicial review application she was making would take the matter out of Judge Sarson’s hands. She cited R. v. Batchelor[4] from the Supreme Court of Canada which she said deprived the Provincial Court of jurisdiction over her until the certiorari application has been decided.

[24]         Judge Sarson adjourned Ms. Cummings’ plea withdrawal application to October 12, 2022 for a status report. He asked her to give some thought in the meantime to whether she intended to proceed. He noted issues Ms. Cummings would need to address if she decided to advance the application. Ms. Cummings responded by stating that once filed, her judicial review application would deprive Judge Sarson of the jurisdiction to hear the matter.

          Further Appearances - October 12, 2022 to May 26, 2023

[25]         There were ongoing appearances in Provincial Court for Ms. Cummings beyond the dates she targeted in her Notice of Judicial Review. In appearances before Judge Sarson on the matter of her guilty pleas, Ms. Cummings continued to insist he had no jurisdiction over them or her.

[26]         At the status hearing before Judge Sarson on October 12, 2022 Ms. Cummings advised that her judicial review application had been filed and was scheduled for October 26. Ms. Cummings insisted the Provincial Court had lost jurisdiction over both her and the offences. Judge Sarson had not seen Ms. Cummings’ Notice of Judicial Review. He adjourned her plea withdrawal application to October 21 for a status report so he could track it down.

[27]         On October 21, Judge Sarson cancelled the scheduled hearing date of October 25 as it was immediately before Ms. Cummings’ judicial review in the Nova Scotia Supreme Court on October 26. A new date was set—March 3, 2023.

[28]         On November 24, 2022, Ms. Cummings advised Judge Sarson her application for judicial review had been summarily dismissed. She indicated she had filed an appeal. Judge Sarson confirmed the March 3, 2023 date for the application to withdraw the December 7, 2021 guilty pleas. He scheduled a status date of January 6, 2023 to address whether Ms. Cummings was waiving solicitor-client privilege in relation to communications with the lawyer who represented her when the guilty pleas were entered. Ms. Cummings continued to emphasize that she was before the court “under protest”.

[29]         On January 6, 2023 Judge Sarson noted that Ms. Cummings had not given any indication she was prepared to sign a solicitor-client waiver. He scheduled February 6, 2023 for a hearing on the issue of implied waiver. On February 6, Ms. Cummings signed a limited waiver. The judge confirmed the March 3 date for hearing Ms. Cummings’ application to withdraw her guilty pleas.

[30]         In the meantime, Ms. Cummings made a motion in the Nova Scotia Supreme Court to re-open the hearing of the judicial review which had been dismissed by Justice Norton. The motion was heard and dismissed on February 21, 2023 by Justice Mona Lynch. That decision has not been appealed.

[31]         On March 3, 2023 Ms. Cummings was back in Provincial Court before Judge Sarson. He sought to ascertain if Ms. Cummings was proceeding with her plea withdrawal application. She ultimately responded with: “I am proceeding with the appeal in the Nova Scotia Court of Appeal with respect to jurisdiction as I’ve outlined in all the preceding materials”. She repeated this position several times and gave no indication she was preparing her withdrawal application.

[32]         Judge Sarson concluded there was no alternative but to dismiss Ms. Cummings’ application to withdraw her guilty pleas. He did so and set a sentencing date of May 26, 2023 for the three offences. Ms. Cummings was sentenced on that date.

The Notice of Judicial Review—the Criminal Code and the Civil Procedure Rules

[33]         Ms. Cummings’ Notice of Judicial Review indicates it was brought pursuant to Part XXVI of the Criminal Code and Civil Procedure Rule 64. CPR 64 permits applications for prerogative writs (Rule 64.01(2)), including for mandamus, certiorari and prohibition. CPR 64.03(3) provides that certain provisions of CPR 7 are applicable to such applications, including CPR 7.05. Rules 64.03(2) and 7.05 both indicate the time requirements for filing a notice.

[34]         Rule 64.03(2) requires that a notice must be filed “no more than twenty-five days after the day of the decision under review…” Rule 7.05 specifically states that the notice is to be filed “before the earlier of the following (a) twenty-five days after the day the decision is communicated to the person; (b) six months after the day the decision is made”.

[35]         Justice Norton referenced CPR 7.05 as the basis for his dismissal of Ms. Cummings’ Notice.

What Ms. Cummings is Seeking on Appeal

[36]         Ms. Cummings’ Notice of Appeal contains the following request for relief:

Order requested

The Appellant says that the judgment appealed from should be reversed and set aside, and a declaration made that the Nova Scotia Provincial Court has lost jurisdiction over the Appellant and matters concerning the Appellant; and that, wherein due process had been denied in the Nova Scotia Supreme Court, on an interim motion to be filed prior to the Motion for Date and Directions, pursuant to Rule 82.22(3), the Respondents be properly put to the mandatory onus of producing the lower court record for the purpose of Judicial Review in the Nova Scotia Supreme Court or in this Honourable Court.

[37]         At every court level—Provincial Court, Supreme Court, and Court of Appeal—Ms. Cummings has insisted the Provincial Court has no jurisdiction over her or the criminal charges.

Analysis - Appeal

[38]         Justice Norton’s determination that Ms. Cummings had filed her Notice out of time involved interpreting the Civil Procedure Rules, notably Rule 7.05. The standard of review therefore is one of correctness.[5] He identified and applied the Rule correctly. Ms. Cummings had to comply with the Rules and failed to do so. While the Rules allow for the exercise of inherent jurisdiction to excuse compliance[6], there was no basis for Justice Norton to have done so. It was a simple matter. Ms. Cummings was out of time for filing the Notice in relation to: April 25, 2019; November 12, 2019; December 28, 2019; December 30, 2019; December 7, 2021; August 11, 2022; and August 22, 2022. Deference is to be afforded to Justice Norton not excusing Ms. Cummings’ non-compliance.

[39]         As Ms. Cummings’ Notice of Judicial Review was filed on October 5, 2022, her September 27, 2022 appearance in Provincial Court occurred within the 25 days allowed for filing. However, as I have noted, the appearance merely involved a status update and a further adjournment, for status, to October 12, 2022. There was nothing which could give rise to a prerogative writ. Indeed, this was true for all the dates Ms. Cummings included in her Notice.

[40]         If Ms. Cummings was dissatisfied with decisions made in the Provincial Court she had the option to pursue remedies under the Criminal Code, such as provided by bail review and appeal.

[41]         Ms. Cummings targeted the enumerated proceedings in the Provincial Court as they represented an ongoing provocation: the court’s continued exercise of jurisdiction over her and the charges.[7]

[42]         The Criminal Code establishes the jurisdiction of the Provincial Court over Ms. Cummings and the criminal charges against her.[8] Claiming a loss of jurisdiction as Ms. Cummings has done cannot conjure into existence a jurisdictional error. The judges of the Provincial Court have the jurisdiction to address bail (s. 515), remand accused persons into custody (s. 516), accept guilty pleas (s. 606(1.1)), and impose sentence (s. 720). Indeed, as I mentioned earlier, the Crown proceeded summarily which gave the Provincial Court exclusive jurisdiction over Ms. Cummings and the charges.

[43]         I do not intend to address Ms. Cummings other grounds of appeal. They are not proper grounds of appeal and I consider them wholly without merit.

[44]         I would dismiss the appeal.

Crown Motion to Have Ms. Cummings Declared a Vexatious Litigant

[45]         The Crown’s motion to have Ms. Cummings declared a vexatious litigant in this Court has a context. She has been before this Court previously, making identical, fruitless arguments about loss of jurisdiction in the Provincial Court. Although what Ms. Cummings did in the past—wasting the Court’s time and resources—does not save the Crown’s application, there is value in identifying a pattern. However that history, even combined with Ms. Cummings’ latest ploys, does not empower this Court to make the declaration being sought. It is the criminal law underpinnings of her Notice and the entitlement to appeal afforded her by the Criminal Code that are ultimately fatal to the Crown’s motion. 

[46]         A significant obstacle to declaring Ms. Cummings a vexatious litigant in this Court is a constitutional one. As I will explain, I have concluded it is not possible to use provincial legislation as a springboard for a vexatious litigant declaration where the litigant is relying on the authority of the Criminal Code to advance an application for prerogative relief.

[47]         Another obstacle is erected by the statutory right of appeal afforded Ms. Cummings by s. 784 of the Criminal Code. The section provides for an appeal to the Court of Appeal “from a decision granting or refusing the relief sought in proceedings by way of mandamus, certiorari or prohibition”.

[48]         Ms. Cummings’ Notice of Appeal pleads s. 784 of the Criminal Code.

Not Ms. Cummings’ First Protracted Attempt to Avoid Facing the Music in Provincial Court

[49]         Ms. Cummings previously employed very similar strategies to those utilized by her in this case, endeavouring, unsuccessfully, to bring a halt to criminal charges proceeding in the Provincial Court. She made repeated claims the Provincial Court had lost jurisdiction over her and the charges. As she did in 2022 before Judge Sarson, Ms. Cummings relied on R. v. Batchelor for the proposition that the Provincial Court’s jurisdiction was suspended while her certiorari application was before the Supreme Court.

[50]         I will briefly describe this past history.

[51]         In 2011 Ms. Cummings applied for judicial review in the Nova Scotia Supreme Court, her plea for relief including:

An order quashing all informations, warrants, undertakings, and recognizances which are null and void; dismissal of all charges; and a declaration that jurisdiction had been lost by the Provincial Court over the charges laid against the Applicant; and that all arrests and warrants were null and void and of no force and effect.[9]

[52]         Her application was heard and dismissed on June 29, 2011. Her appeal of the decision was dismissed for failure to perfect.[10] She sought leave to the Supreme Court of Canada which was refused.[11]

[53]         Ms. Cummings’ failed certiorari application in 2011 is referenced in R. v. Cummings, 2013 NSCA 112, a detailed summary of her efforts in this Court and the Nova Scotia Supreme Court to neutralize Provincial Court proceedings against her. Justice Fichaud, in a written decision on motions in Chambers by Ms. Cummings, noted that in June 2013 Ms. Cummings had attempted to file what she purported was a new Notice of Judicial Review in the Nova Scotia Supreme Court. It repeated the same claim for relief that had been rejected on June 29, 2011. At the direction of Justice Heather Robertson of the Nova Scotia Supreme Court, it was not accepted for filing.

[54]         Ms. Cummings appealed the refusal to accept her “new” Notice of Judicial Review for filing to this Court. In her Notice of Appeal she sought orders for:

…a declaration that the Provincial Court lost jurisdiction over all charges and that all arrests and warrants since 2008 were null and void; an order quashing all informations, undertakings and recognizances; an order directing all persons to cease taking any further action against her in Provincial Court; an order staying a conviction [that had already been entered against her in Provincial Court].[12]

[55]         Justice Duncan Beveridge sitting in Chambers dealt with Ms. Cummings’ motion seeking the stays. He noted the record before him indicated proceedings involving Ms. Cummings had been ongoing in Provincial Court since 2007. He referred to her failed attempt in 2011 to have all the Provincial Court proceedings stayed by way of judicial review. Justice Beveridge noted the proceedings included an application Ms. Cummings had scheduled in Provincial Court for the withdrawal of guilty pleas “she had entered some years ago to various charges”.[13]

[56]         Justice Beveridge denied Ms. Cummings a stay of proceedings. Applying the well-established Purdy[14] test, he found no evidence she would experience irreparable harm nor had she shown exceptional circumstances.

[57]         On June 10, 2014, the Registrar’s motion seeking dismissal of Ms. Cummings’ appeal (of the Justice Robertson “decision”) for failure to perfect was granted. Justice Scanlan in Chambers, did not mince words when describing the protracted proceedings Ms. Cummings had been initiating:

[4]        The laws and Rules of Court intend to provide a forum for aggrieved parties to have valid disputes litigated in a responsible and efficient manner, In criminal proceedings the Criminal Code, rules of evidence and Civil Procedure Rules are intended to offer an accused full opportunity of defence so as to allow for a fair trial on the merits.

[5]        The processes in place are not intended to provide a forum for justice participants to embark upon a mind-numbing series of applications and appeals without regard to the merits or costs.

…

[8]        Ms. Cummings appeared on June 5, 2014, to resist the Registrar’s motion for dismissal. She suggests that she should be permitted to proceed with her appeal. The documents Ms. Cummings filed in preparation for this contested motion suggest to me that she will not follow any court direction in any event, even if this appeal were to proceed. The materials she has filed suggest to me that she is insisting on arguing every case in every court she has encountered.[15]

[58]         Justice Scanlan noted that Ms. Cummings was continuing to advance issues before the courts that were moot,

[12]      …because the proceedings in Provincial Court have caught up and passed her. The trial has been completed, she has been sentenced and the appeal period long since expired.

[59]         Ms. Cummings’ litigation in 2011-2014, aimed at the Provincial Court proceedings in which she was ensnared, consumed valuable court time and resources without achieving a shred of success. This strategy is on repeat in this case with mootness in play as well. Notwithstanding Ms. Cummings’ assertions that Judge Sarson had no jurisdiction over her or the charges, her guilty pleas concluded in the imposition of a sentence from which no appeal has been taken.

          Proceedings before the Nova Scotia Court of Appeal in 2022-2023

[60]         Ms. Cummings filed her Notice of Appeal from Justice Norton’s decision on November 22, 2022. She was required to file her Motion for Date and Directions and a Certificate of Readiness no later than March 21, 2023. She did not do so. On March 30, 2023, the Registrar made a motion to dismiss the appeal. In response, Ms. Cummings filed the Motion and Certificate. The Civil Procedure Rules do not empower the Registrar to accept a late filing, requiring the matter to be dealt with by a judge in Chambers.

[61]         Ms. Cummings appeared in Appeal Court Chambers before Justice Peter Bryson on April 20, 2023. She brought several motions, including a motion to amend her Notice of Appeal and a motion for mandamus and prohibition. She was seeking to include in her appeal Justice Lynch’s refusal to reopen the judicial review Justice Norton had dismissed. And she explained to Justice Bryson why she was seeking an order for prohibition against the Provincial Court:

…And you know, I had to go through an inordinate number of hearings, and I rightly—I believe rightly—this is squarely a jurisdictional issue. And it’s a lot to ask me to repeatedly show up in court for things that the court doesn’t have, I submit, jurisdiction over me or the offences.

[62]         Justice Bryson dismissed Ms. Cummings’ proposed amendment. He also dismissed her motion for mandamus and prohibition. He allowed the late filing of Ms. Cummings’ Motion for Date and Directions.

[63]         At the April 20 Chambers hearing, the Crown indicated it was seeking to have the Court declare Ms. Cummings a vexatious litigant in relation to proceedings in the Court of Appeal alone. Crown counsel acknowledged that lower courts would have to exercise their own inherent jurisdiction to make such a declaration for the purpose of controlling their processes.         

          The Basis for the Notice of Judicial Review

[64]         As I noted, Ms. Cummings’ Notice of Judicial Review states it was brought pursuant to Part XXVI of the Criminal Code and Civil Procedure Rule 64. Part XXVI applies to proceedings in criminal matters by way of certiorari, mandamus and prohibition. Ms. Cummings sought certiorari for what she alleged was Judge Sarson’s error in proceeding with her plea withdrawal application despite having lost jurisdiction. Irrespective of her meritless claims, Ms. Cummings’ application for judicial review was not a civil matter. It relied on the prerogative writ provisions of the Civil Procedure Rules and the Criminal Code.

          The Crown’s Application for a Vexatious Litigant Declaration

[65]         The Crown asks to have Ms. Cummings declared a vexatious litigant in this Court and for an Order that prevents further litigation by her or on her behalf without the prior approval of a judge of this Court.

[66]         The Crown correctly acknowledges that the authority to declare Ms. Cummings a vexatious litigant cannot be found in section 45B of the Judicature Act[16] which is inapplicable to criminal proceedings, including judicial review arising from criminal proceedings. The reasoning of the British Columbia Court of Appeal in Holland (Re)[17] is persuasive on this point. The Court held:

[5]        …vexatious litigant orders pronounced under the authority of provincial statutes do not apply to criminal matters proceeding properly as applications for certiorari under the Criminal Rules.

[67]         The constitutional problem is one of separation of powers. As stated in Holland:

[18]      …I do not think that provincial legislation intended to regulate criminal procedure would be constitutionally valid. Parliament has exclusive jurisdiction over criminal law and criminal procedure by virtue of s. 91(27) of the Constitution Act, 1867. I think it clear that this is a criminal matter, regulated as a matter of procedure by the Code and the Criminal Rules. As a matter of criminal procedure, the regulation of such applications falls within the exclusive jurisdiction of Parliament.

[19]      In my view, the straightforward answer is that the Legislature, in passing vexatious litigant legislation, did not intend to regulate criminal procedure…

[68]         As with our Civil Procedure Rule 64, the British Columbia Criminal Rules were enacted pursuant to the rule-making authority found in s. 482 of the Criminal Code. Our Rule 64.01(1) states: “This Rule is made under subsections 482(1) and (3) of the Criminal Code”.[18] Those provisions of the Code permit courts of appeal to make rules of court “not inconsistent with this or any other Act of Parliament…”[19] CPR 64.01(2) provides that “A person may apply for a prerogative writ in relation to a criminal proceeding…in accordance with this Rule”.

[69]         The Crown proposes we should find our authority to declare Ms. Cummings a vexatious litigant in Civil Procedure Rules 90 and 91. Rule 91 governs criminal appeals and is made under subsections 482(1) and (3) of the Criminal Code. Rule 91.02(2) states that the CPRs as a whole and in particular Rule 90, governing civil appeals, apply to criminal appeals “with any necessary modifications and when not inconsistent” with Rule 91. There is however no authority in the Civil Procedure Rules that would allow for the circumvention of the doctrine of separation of powers. In accordance with s. 91(27) of the Constitution Act, 1867, Parliament exercises exclusive jurisdiction over criminal law and procedure.

[70]         Ms. Cummings’ appeal is a criminal matter, regulated as a matter of procedure by the Criminal Code and the Civil Procedure Rules. I find that Rules 90 and 91 cannot ground a vexatious litigant order in relation to Ms. Cummings any more than s.45B of the Judicature Act can. The same separation of powers and statutory right of appeal obstacles are present. A vexatious litigant order in this context would be constitutionally invalid.

[71]         While I am satisfied this Court has the inherent jurisdiction to control its own processes,[20] we are otherwise a statutory court. We must exercise control over proceedings before us in accordance with the law. In my opinion, there is limited scope for invoking the common law doctrine of abuse of process by way of an order restraining a vexatious litigant. The restraints we can cast over litigants who abuse our processes is limited to civil litigants. It is only in the context of civil litigation that this Court has declared a litigant vexatious and prohibited him from commencing appeals without leave of the Court of a judge thereof.[21]

[72]         We have not been made aware of any appellate decision in Canada in which a litigant comparable to Ms. Cummings, that is, a litigant appealing pursuant to s. 784 of the Criminal Code from the dismissal of an application for Part XXVI prerogative relief, has been made the subject of a vexatious litigant order.

[73]         The Crown has relied on R. v. Grabowski[22] which involved the filing of multiple prerogative writ applications and the exploitation of the Batchelor principle to dodge trial on three traffic tickets. When Mr. Grabowski served the Provincial Court and the Crown with his third Notice of Motion he left the courtroom. The court proceeded to hold the trial in his absence. Convictions were entered and fines imposed. Mr. Grabowski’s fourth application for prerogative relief sought to have his convictions stayed.

[74]         The Alberta Court of Queen’s Bench dismissed the application finding that Mr. Grabowski was “intentionally delaying the prosecutions”.[23] The court found Mr. Grabowski had employed Batchelor to avoid trial on three earlier occasions. This time, “In the face of the fourth motion for prerogative relief, and having absented himself from the proceedings, the court…was entitled to proceed on evidence to convict and to sentence Mr. Grabowski”.[24]

[75]         In my view, the Grabowski case does not assist the Crown. It is not an authority for declaring Ms. Cummings a vexatious litigant. No application was made to have Mr. Grabowski declared a vexatious litigant. The Alberta Court of Queen’s Bench endorsed the Provincial Court’s entitlement to proceed to adjudicate his charges notwithstanding Batchelor and the third application for prerogative relief. Similarly, Judge Sarson proceeded to deal with Ms. Cummings’ charges notwithstanding her pending appeal in this Court from the dismissal of her Notice of Judicial Review. I am satisfied he had the jurisdiction to do so and was not required to delay the Provincial Court proceedings.

Conclusion

[76]         Were Ms. Cummings before this Court having brought the plethora of judicial review and other applications arising from civil not criminal proceedings, in my opinion we would have the authority to declare her a “vexatious litigant” on the basis of her having “habitually, persistently and without reasonable grounds, started a vexatious proceeding”.[25] I do not see a basis to do so here that could be compatible with Parliament’s exclusive jurisdiction over criminal law and Ms. Cummings’ statutory right of appeal under the Criminal Code. Ms. Cummings should not expect, however, that the Crown’s failed motion is a license for her to burden this Court with meritless motions and appeals. At the very least, her predilections are known and she will be held in future, on a consistent basis, to strict compliance with the Rules.

Disposition

[77]         I would dismiss the appeal and the Crown’s motion in this case to have Ms. Cummings declared a vexatious litigant in this Court.

 

Derrick, J.A.

Concurred in:

Bourgeois, J.A.

 

 

 

Beaton, J.A.

Appendix “A”

 

 

 

 

 

Appendix “B”