R. v. Derbyshire (B.L.), 2015 NSCA 23

Judge:Fichaud, J.A.
Court:Nova Scotia Court of Appeal
Case Date:March 05, 2015
Jurisdiction:Nova Scotia
Citations:2015 NSCA 23;(2015), 356 N.S.R.(2d) 347 (CA)
 
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R. v. Derbyshire (B.L.) (2015), 356 N.S.R.(2d) 347 (CA);

    1126 A.P.R. 347

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Temp. Cite: [2015] N.S.R.(2d) TBEd. MR.015

Her Majesty the Queen (appellant) v. Brittany Leigh Derbyshire (respondent)

(CAC 435848; 2015 NSCA 23)

Indexed As: R. v. Derbyshire (B.L.)

Nova Scotia Court of Appeal

Fichaud, J.A.

March 6, 2015.

Summary:

Skinner was charged with a 2011 murder. The police believed that the accused drove Skinner to the Moncton airport, where he flew to Vancouver and then Mexico. The police obtained a wiretap authorization to intercept the communications of a number of people, including Skinner and the accused. When that operation yielded little success, undercover police officers, posing as outlaw Quebec bikers coming to tie up any loose ends, confronted the accused. The operation yielded statements by the accused to the undercover officers and physical evidence and locations. When the accused was charged with being an accessory after the fact to murder, she applied to exclude the evidence obtained on the ground that the undercover officers detained her when they took her to Moncton, violating her s. 7 Charter rights (right to silence and protection against self-incrimination). Alternatively, the accused sought exclusion of the evidence or a stay of proceedings on the ground that the undercover operation was an abuse of process.

The Nova Scotia Supreme Court, in a judgment reported (2014), 353 N.S.R.(2d) 40; 1115 A.P.R. 40, held that there was no breach of the accused's s. 7 Charter rights. However, the undercover operation constituted an abuse of process. The court exercised its discretion by excluding from evidence the accused's statements to the undercover officer, the physical evidence provided and the locations identified. The accused was subsequently acquitted. The Crown was unable to serve the accused with a Notice of Appeal within the 25 day time period prescribed by Civil Procedure Rules 91.09 and 91.10(1)(b) because the accused entered the United States, with no known return date. The Crown moved to extend the time to serve the Notice of Appeal.

The Nova Scotia Court of Appeal, per Fichaud, J.A., extended the time to serve the Notice of Appeal a further 25 days.

Criminal Law - Topic 4909

Appeals - Indictable offences - Procedure - Notice of appeal or application for leave to appeal - Time for filing or serving (incl. extension of) - The accused was acquitted on a charge of being an accessory after the fact to murder - The trial judge had excluded the accused's statements to police and physical evidence on the ground that the police undercover operation that elicited the evidence constituted an abuse of process - The Crown was unable to serve the accused with a Notice of Appeal within the 25 day time period prescribed by Civil Procedure Rules 91.09 and 91.10(1)(b) because the accused entered the United States, with no known return date - The Crown moved to extend the time to serve the Notice of Appeal - The Nova Scotia Court of Appeal, per Fichaud, J.A., extended the time to serve the Notice of Appeal a further 25 days - The Crown had a bona fide intention to appeal within the time limit and acted diligently in attempting to effect service - The accused's absence from Canada was a reasonable excuse for the failure to effect service - The accused would not be prejudiced and the Crown raised arguable issues on appeal.

Cases Noticed:

R. v. R.E.M. (2011), 299 N.S.R.(2d) 258; 947 A.P.R. 258; 2011 NSCA 8, refd to. [para. 11].

Cormier v. Graham et al. (2015), 356 N.S.R.(2d) 227; 1126 A.P.R. 227; 2015 NSCA 17, refd to. [para. 11].

R. v. Hart (N.L.) (2014), 461 N.R. 1; 353 Nfld. & P.E.I.R. 222; 1099 A.P.R. 222; 2014 SCC 52, refd to. [para. 13].

R. v. Mack (D.R.) (2014), 462 N.R. 380; 580 A.R.41; 620 W.A.C. 41; 2014 SCC 58, refd to. [para. 13].

Counsel:

Jennifer A. MacLellan, for the appellant;

The respondent not appearing.

This motion was heard on March 5, 2015, at Halifax, N.S., in Chambers, before Fichaud, J.A., of the Nova Scotia Court of Appeal, who delivered the following judgment on March 6, 2015.

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