Court of Appeal

CASE NO.                                                   VOL. NO.                                                           PAGE

STEPHEN FREDERICK MARSHALL, KEITH LAWRENCE JULIEN,

CHRISTOPHER JAMES PAUL, JASON WAYNE MARR, SIMON

JOSEPH WILMOT, DONALD THOMAS PETERSON, STEPHEN JOHN

KNOCKWOOD, IVAN ALEXANDER KNOCKWOOD, LEANDER

PHILIP PAUL, WILLIAM JOHN NEVIN, ROGER ALLEN WARD, MIKE

GORDON PETER-PAUL, JOHN MICHAEL MARR, JOSEPH SACK,

MATTHEW EMMETT PETERS, STEPHEN JOHN BERNARD,

WILLIAM GOULD, CAMILLIUS ALEX JR., JOHN ALLAN BERNARD,

PETER ALEXANDER BERNARD, ERIC STEPHEN KNOCKWOOD,

GARY HIRTLE, JERRY WAYNE HIRTLE, EDWARD JOSEPH PETER-

PAUL, ANGUS MICHAEL GOOGOO, LAWRENCE ERIC HAMMOND,

THOMAS M. HOWE, DANIEL JOSEPH JOHSNON, DOMINIC GEORGE

JOHNSON, JAMES BERNARD JOHNSON, PRESTON MACDONALD,

KENNETH M. MARSHALL, STEPHEN MAURICE PETER-PAUL, LEON

R. ROBINSON, PHILLIP F. YOUNG

(Appellants)

-  and  -

MARTIN E. HERSCHORN, in his capacity as Acting Director of

Public Prosecutions (Nova Scotia) and HER MAJESTY THE QUEEN

(Respondents)

CA 173680

CA 174779

CA 174780                                                  Halifax, N.S.                                      CROMWELL, J.A.

                                            [Cite as: R. v. Marshall, 2002 NSCA 43]

APPEAL HEARD:                             March 22^nd, 2002

JUDGMENT DELIVERED:            April 3^rd, 2002

SUBJECT:                 Summary Conviction Appeal - Interlocutory Application for Discovery

Judicial Review - Contents of the Return - Discovery of Statutory Decision Maker

SUMMARY:              The appellants were convicted in Provincial Court on charges under the Crown Lands Act,  R.S.N.S. 1989, c. 114.  They commenced a summary conviction appeal to the Supreme Court of Nova Scotia.  The then acting Director of Public Prosecutions appointed Alexander MacBain Cameron, a lawyer with the Department of Justice,  as a Crown Attorney to act on any appeals resulting from the conviction.  The appellants thereupon brought two proceedings challenging Mr. Cameron’s appointment.  They applied by way of interlocutory application in the summary conviction appeal to remove him.  In aid of that interlocutory application, they brought a further interlocutory application for leave to call the Director of Public Prosecutions as a witness and, in addition, served him with a notice to attend for examination for discovery.  The appellants also applied by way of originating notice (application inter partes) for orders in the nature of certiorari and prohibition in relation to Mr. Cameron’s appointment.  By way of interlocutory application in the judicial review matter, they applied for a date for the Director of Public Prosecutions to file the return required under Rule 56, for an order requiring the Director of Public Prosecutions to attend for examination for discovery and, alternatively, for leave to adduce oral evidence from him on the return of the judicial review application. Wright, J., in the context of the interlocutory application in the summary conviction appeal proceeding, held that the Director of Public Prosecutions was not compellable on discovery.  MacDonald, A.C.J.S.C., dealing with aspects of the interlocutory applications in both the summary conviction appeal and in the judicial review proceeding, refused leave for the Director of Public Prosecutions to be called as a witness, defined the contents of the return required by Rule 56 and refused to order discovery or grant leave to adduce oral evidence.  The appellants sought leave to appeal all of these decisions. 

RESULT:                    Applications for leave to appeal dismissed.  Since the hearing of the various interlocutory applications, the summary conviction appeal itself had been heard and determined in the Supreme Court of Nova Scotia and the point concerning Mr. Cameron’s appointment had not been pursued before the summary conviction appeal court judge.  It followed that no practical purpose would be served by hearing the interlocutory appeals in relation to the summary conviction appeal matter.

In relation to the interlocutory appeal in the judicial review proceeding, the proposed appeal did not raise fairly arguable issues.  The decision of the Court in Waverley (Village) v. Nova Scotia (Minister of Municipal Affairs) (1994), 129 N.S.R. (2d) 298 applied.