IN THE PROVINCIAL COURT
Cite: R. v. Smith, 2003 NSPC 008
DATE: 20030314
DOCKET: 1242117, 1242118
BETWEEN:
HER MAJESTY THE QUEEN
VERSUS
DEBORAH JEAN SMITH
DECISION
HEARD BEFORE: The Honourable Associate Chief Judge R. B. Gibson
PLACE HEARD: Dartmouth, Nova Scotia on March 10, 2003
SUBJECT: Application to Vary a Release Order Pursuant to the Provisions of Section 523(2) of the Criminal Code of Canada
COUNSEL: Alonzo Wright, Crown Attorney
Patrick Egan, Counsel for the Defendant
[1] The accused is charged on one Information with the offences of assault with a weapon contrary to Section 267(a) of the Criminal Code of Canada and aggravated assault contrary to Section 268 of the Criminal Code of Canada allegedly occurring on the 30th day of October 2002.
[2] The accused, subsequent to her arrest, was released on October 31st, 2002 subject to the terms and conditions of a $5000.00 Recognizance Order. The Recognizance, on application of the accused, was varied December 10th, 2002 pursuant to the provisions of Section 515.1 of the Criminal Code.
[3] On January 22, 2003 the accused elected trial in the Provincial Court and pled not guilty. A trial date was set for June 19th, 2003. On January 22nd, 2003, the accused gave notice of her application to seek a further variation of the Recognizance. The application was scheduled for hearing on February 3rd, 2003.
[4] Although represented by counsel through the Legal Aid Commission with respect to the trial, the accused appeared on February 3rd, 2003 unrepresented by counsel. The Crown, unlike the position it adopted on December 10th, 2002 with respect to the previous application to vary the same Recognizance, was unprepared to provide the consent contemplated by Section 515.1 of the Criminal Code. Thus, this application is before me pursuant to the provisions of Section 523(2). The Crown takes the position that, absent consent as contemplated by Section 523(2)(c), this Court has no jurisdiction to hear this application. The Crown withheld its consent on February 3rd, 2003 and maintained that position when this matter returned before me on March 10th for decision. The Crown also takes the position that since the accused is not currently being tried , the provisions of Section 523(2)(a) are not applicable.
[5] The accused appeared on March 10th represented by counsel at which time further submissions were made by both counsel. Although I rendered an oral decision on March 10, 2003, I undertook to provide more detailed reasons for my decision.
[6] It is submitted on behalf of the accused that the words “is being tried” found in Section 523(2)(a) ought to be liberally interpreted to include the time measured from the date when plea is tendered to the end of the trial. Counsel for the accused urges this Court to adopt such an interpretation to avoid hardship to this applicant and other applicants and to promote the principle of fairness. Counsel for the accused submits that as a matter of policy the Legal Aid Commission generally does not provide representation to applicants seeking to vary or vacate existing release orders, notwithstanding the fact that the Commission may have agreed to provide legal representation with respect to the trial of the charges in relation to which a release order was made. It is submitted that if consent is withheld by the Crown, applicants will be required to bring their applications under the provisions of Section 520 before a Supreme Court Judge. Aside from the necessity of appearing before two courts, it is submitted that applications under the provisions of Section 520 before the Supreme Court are more process orientated and will thereby present a greater hardship for self-represented individuals. Counsel for the accused has also expressed a concern that the Crown will act arbitrarily in the exercise of its discretion to provide or withhold its consent, as contemplated by Section 523(2)(c), which may result in unfairness.
[7] Notwithstanding what would appear to be generally valid concerns raised by counsel for the accused, recent case law supports a more restrictive interpretation of the words “is being tried” found in Section 523(2). (See R. v. Arkison [1996] B.C.J. No. 2549; R. v. Holt [1999] S.J. No. 673; R. v. Michaud [2000] S.J. No. 846; and R. v. Hardiman [2002] N.S.S.C. 2008, and on appeal at 2003 N.S.C.A. 017). The foregoing cases hold that the provisions of Section 523(2)(a) only apply to applications brought in the course of the trial.
[8] In the case of R. v. Hardiman (2003) N.S.C.A. 017 Cromwell, J.A. states at paragraph 13:
“Cacchione, J. held, in my view rightly, that as Ms. Hardiman was not being tried at the time of her application, the Supreme Court would have jurisdiction under Section 523(2) only if the prosecutor consented to the application. That consent not having been granted, there was no jurisdiction. He further held that even if the Supreme Court has inherent jurisdiction in bail matters, it exists “...only where Parliament has not spoken on the issue...”. Being of the view that s. 523 was exhaustive of the court’s jurisdiction with respect to changes of conditions of release for persons in Ms. Hardiman’s situation, he concluded that there was no room for the exercise of inherent jurisdiction where an accused sought to vary the conditions of release but could not meet the requirement of s. 523(2). I see no reason to doubt the correctness of this conclusion. I note that the conclusion that s. 523(2) ousts any inherent jurisdiction to vary bail conditions applies only to the situations addressed by that section.”
[9] Prior to this application, I have given the words “is being tried” found in Section 523(2)(a) a less restrictive interpretation then that held in the foregoing cases. Pursuant to that less restrictive interpretation, I have previously concluded that an individual before the Provincial Court charged summarily or charged with an indictable offence over which the Provincial Court has absolute jurisdiction or who has elected trial before the Provincial Court “is being tried” in the Provincial Court from the moment a plea of not guilty is tendered. Consistent with that interpretation, I have previously held that Crown consent is required pursuant to Section 523(2)(c) for jurisdictional purposes only in respect of applications brought by an accused in the Provincial Court when the accused is charged with an indictable, electable offence where no election has yet been made by the accused. I am now persuaded that I must apply a more restrictive interpretation of the words “is being tried” found in Section 523(2)(a).
[10] I conclude that my jurisdiction to hear this application is subject to Crown consent as prescribed in S. 523(2)(c). The Crown having withheld its consent leaves me without jurisdiction to hear this matter. The accused is not without any recourse to pursue her application. Consistent with the conclusion of Sherar J. in the case of R. v. Evans, an unreported decision of December 5, 2002. I am of the opinion that the accused must bring her application under the provisions of Section 520 of the Criminal Code before a Judge of the Supreme Court of Nova Scotia. Crown consent is not required to bring an application before a Supreme Court Judge pursuant to the provisions of Section 520. Although the provisions of Section 520 may be more generally utilized to deal with matters where one of the parties is dissatisfied with the initial judicial interim release hearing decision, I conclude that the provisions of Section 520 do not limit reviews solely for the purpose of determining whether the initial judicial interim release hearing decision was appropriate. Proceedings under Section 520 are in effect de novo hearings, wherein I would suggest both the record of the proceedings before the Justice who made the initial judicial interim release order, as well as any further evidence, including that pertaining to any changed circumstances since the intitial bail hearing may be placed before the Judge hearing the application.
[11] The principles of fairness would suggest that the Crown, when withholding its consent ought to state for the record its reasons for doing so. The provision of such reasons ought to act as a balance against the possible arbitrary exercise of the Crown’s discretion and would further provide a basis for review by the Judge considering the application brought pursuant to the provisions of Section 520. Absent such reasons, the Crown might well be seen to be engaged in forum-shopping, a concern which was recognized in the case of R. v. Patterson (1985) 19 C.C.C. (3d) 149 where, at page 153, it is stated,
“I would expect that the Crown would not unreasonably withhold such consent, because the only effect of so doing would be to force the accused to appear before the Chief Justice. To withhold consent without reason would open the Crown itself to the criticism of the forum-shopping.”
[12] In this particular case, the Crown has stated its reasons for withholding its consent. The Crown provides two reasons. Firstly, the charges involve allegations of domestic violence and secondly, the charges are serious. Unanswered is the question of what places a Judge of the Supreme Court in a better position to consider the merits of this application than a Judge of the Provincial Court where the accused has elected to have her trial. There is little doubt, however, that the process to have the merits of the application heard has been made more difficult and protracted by the failure of the Crown to provide its consent for jurisdictional purposes.
[13] In light of comments made by the Crown, I am concerned that the Crown may also have been motivated by a desire to make this process more difficult for the accused. Crown counsel, in the course of providing the reasons why Crown consent was not forthcoming in this case, expressed a general concern about accused individuals simply agreeing to proposed release conditions to avoid a contested bail hearing and thereby quickly gain their release from custody with the intention of making an early, subsequent application to vary or vacate their release orders. This does not appear to be the situation with respect to this case before me. However, it seems to me that the provisions of Section 523(2) address this concern through the words “on cause being shown” which set out the test to be applied before vacating any order previously made under Part XVI.
Dated at Dartmouth, this 25th day of March 2003.
________________________________________
R. Brian Gibson
Associate Chief Judge of the Provincial Court