IN THE SUPREME COURT OF NOVA SCOTIA
Citation: R. v. Koerner, 2009 NSSC 402
Date: 20091207
Docket: Pic. No. 311314
Registry: Pictou
Between:
Bernard Patrick Koerner
Appellant
v.
Her Majesty the Queen
Respondent
Judge: The Honourable Justice N.M. Scaravelli.
Heard: December 7, 2009, in Pictou, Nova Scotia
Written Decision: December 29, 2009
Counsel: Bernard Patrick Koerner, not present, nor represented by counsel
T. William Gorman, Esq., for the respondent
By the Court: (Orally)
[1] Well it appears Mr. Koerner is not present. It’s now 1:45. This matter was set down for hearing at 1:30 p.m.
[2] As indicated by Mr. Gorman, this appeal was actually set down for hearing on September 10th, 2009 following the filing of the Notice of Appeal and brief by Mr. Stephen Robertson, who was at the time, counsel for Mr. Koerner.
[3] Mr. Koerner appeared on September 10th, 2009, without counsel, advising that he had terminated services of Mr. Robertson. As the Crown has indicated, Mr. Koerner was in custody at the time. The record in the Court file indicates that he advised the Court at that time he was not even aware that an appeal had been filed, however, he said he wished to have counsel represent him in this matter. At that time, the Crown opposed an adjournment of the appeal, and the Court granted an adjournment to today’s date to enable Mr. Koerner to obtain legal counsel.
[4] There is no information in the file indicating that counsel have been retained. There is no indication in the file, nor the court records, that Mr. Koerner has contacted the Court, and obviously, he has not appeared here today.
[5] I am satisfied that Mr. Koerner had notice of the hearing of the appeal on today’s date. It would appear from all accounts that he is not proceeding, or that he has abandoned his appeal, and based on the above under Section 825 of the Code, the Court has the authority to dismiss the appeal for want of prosecution, and I’m prepared to dismiss this appeal for want of prosecution.
[6] The Crown has indicated, however, that Mr. Koerner’s former counsel did file a factum, which I have reviewed, as well as the Crown’s factum in the event that my decision to dismiss for want of prosecution is not the correct decision, I can indicate on the record that I am satisfied that the Provincial Court Judge applied the appropriate legal test in convicting Mr. Koerner of two counts of obstructing a police officer.
[7] I would also place on the record the fact that counsel for the appellant at the time did not dispute the facts as found by the trial judge, but alleged an error in law in that he failed to apply the proper legal tests, and I’m satisfied that he did apply the proper legal test in determining that the police officer was acting in the lawful execution of his duty when he made the arrest and that the test is whether a reasonable person, in the position of the officer, would conclude there was reasonable grounds for the arrest and not to consider the accused’s state of mind at that time as alleged by the appellant.
[8] So I’m dismissing for want of prosecution. In the alternative, in the event that’s not the correct decision, dismissing the appeal based on failure to establish the grounds as set out in the notice of appeal.
J.