Germa v. Muise, (2014) 428 N.B.R.(2d) 198 (CA)

• Judge: Quigg, J.A.
• Court: Court of Appeal (New Brunswick)
• Case Date: November 14, 2014
• Jurisdiction: New Brunswick
• Citations: (2014), 428 N.B.R.(2d) 198 (CA)

Germa v. Muise (2014), 428 N.B.R.(2d) 198 (CA);

    428 R.N.-B.(2e) 198; 1116 A.P.R. 198

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Sommaire et texte intégral

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2014] N.B.R.(2d) TBEd. DE.015

Renvoi temp.: [2014] N.B.R.(2d) TBEd. DE.015

Justin Germa (intended appellant) v. Ed Muise, Warden (Atlantic Institution) (intended respondent)

(105-14-CA)

Indexed As: Germa v. Muise

Répertorié: Germa v. Muise

New Brunswick Court of Appeal

Quigg, J.A.

December 1, 2014.

Summary:

Résumé:

Germa, an inmate at the maximum security Atlantic Institution, applied for habeas corpus with certiorari in aid.

The New Brunswick Court of Queen's Bench, Trial Division, in a decision reported at 423 N.B.R.(2d) 315; 1103 A.P.R. 315, dismissed the application. Germa filed a notice of appeal, seeking to vary the costs award against him. He did not serve the notice of appeal on the respondent, Muise. As was the practice for criminal appeals, the Registrar of the Court of Appeal contacted Muise, enclosing a copy of the notice of appeal and advising the appeal was classified as a criminal appeal under Rule 63 of the Rules of Court (N.B.). Muise moved for an order to overturn the decision of the Registrar which classified Germa's appeal as a criminal appeal.

The New Brunswick Court of Appeal, per Quigg, J.A., allowed the motion.

Habeas Corpus - Topic 10

General - Whether proceeding criminal or non-criminal - Germa, an inmate at the maximum security Atlantic Institution, applied for habeas corpus with certiorari in aid - The trial judge dismissed the application - Germa filed a notice of appeal, seeking to vary the costs award against him - He did not serve the notice of appeal on the respondent, Muise - As was the practice for criminal appeals, the Registrar of the Court of Appeal contacted Muise, enclosing a copy of the notice of appeal and advising the appeal was classified as a criminal appeal under Rule 63 of the Rules of Court (N.B.) - Muise moved for an order to overturn the decision of the Registrar which classified Germa's appeal as a criminal appeal - The New Brunswick Court of Appeal, per Quigg, J.A., allowed the motion - The decision under appeal was made in the context of a civil application for habeas corpus - It was not brought under the Criminal Code - Germa's "Notice of Preliminary Motion for a Habeas Corpus Order" was filed under rule 69.1 with no reference to the Criminal Code - The application was not argued in criminal court and no prosecutor appeared at the application - The substance of Germa's application indicated that the application was of a civil nature and not criminal - The fact that Germa was appealing the award of costs solely was indicative that this was a civil matter - The costs order was an order that could only be made in the civil proceeding context.

Habeas corpus - Cote 10

Généralités - Procédure pénale ou non pénale - [Voir Habeas Corpus - Topic 10 ].

Cases Noticed:

Wilson v. Canada (Attorney General) (2011), 310 N.S.R.(2d) 325; 983 A.P.R. 325; 2011 NSCA 116, refd to. [para. 6].

Counsel:

Avocats:

Justin Germa appeared in person;

Sarah Drodge, for the intended respondent.

This case was heard on November 14, 2014, by Quigg, J.A., of the New Brunswick Court of Appeal, who delivered the following judgment in both official languages, on December 1, 2014.