R. v. Greener (S.R.), (2003) 220 N.S.R.(2d) 9 (PC)

• Judge: MacDonald, P.C.J.
• Court: Provincial Court of Nova Scotia (Canada)
• Case Date: November 27, 2003
• Jurisdiction: Nova Scotia
• Citations: (2003), 220 N.S.R.(2d) 9 (PC);2003 NSPC 58

R. v. Greener (S.R.) (2003), 220 N.S.R.(2d) 9 (PC);

 694 A.P.R. 9

MLB headnote and full text

Temp. Cite: [2003] N.S.R.(2d) TBEd. DE.045

Her Majesty the Queen v. Stephen Reginald Greener

(1378524; 1379525; 1378526; 2003 NSPC 58)

Indexed As: R. v. Greener (S.R.)

Nova Scotia Provincial Court

MacDonald, P.C.J.

November 27, 2003.

Summary:

An accused was charged with assault, threatening to cause bodily harm and possession of a knife for a purpose dangerous to the public peace. The Crown elected to proceed summarily so that trial was to be in the Provincial Court. At the arraignment, the accused was released on bail subject to agreed upon conditions. The accused applied to vary the conditions of his bail. The Crown refused to consent and asserted that the court lacked jurisdiction to grant the variation without the Crown's consent (Criminal Code, s. 523(2)(c)(iii)).

The Nova Scotia Provincial Court concluded that it had jurisdiction under s. 523(2)(a).

Criminal Law - Topic 3317

Compelling appearance, detention and release - Interim release or detention of accused pending trial or appeal - Jurisdiction of court - The Crown elected to proceed summarily against the accused - At the arraignment, the accused was released on bail subject to agreed upon conditions - The accused applied to vary the conditions - The Crown asserted that the court lacked jurisdiction to grant the variation without the Crown's consent (Criminal Code, s. 523(2)(c)(iii)) - The Nova Scotia Provincial Court held that it had jurisdiction - Section 523(2)(c)(iii) spoke of the procedure where the accused "is to be tried" - Section 523(2)(a) spoke of the procedure where the accused "is being tried" and did not require consent - The court narrowly construed the words "to be tried" to apply to cases where bail had been set, the accused had elected trial in a higher court and there had been a committal for trial - A case was "being tried" as soon as the arraignment occurred - The Crown's consent was required only during the time between committal after a preliminary inquiry and arraignment in the higher court.

Criminal Law - Topic 3319

Compelling appearance, detention and release - Interim release or detention of accused pending trial or appeal - Vacating, cancelling or varying interim release order - [See Criminal Law - Topic 3317 ].

Criminal Law - Topic 3319

Compelling appearance, detention and release - Interim release or detention of accused pending trial or appeal - Vacating, cancelling or varying interim release order - The Nova Scotia Provincial Court stated that "A court, judge or justice is not bound to proceed with an application to vary bail conditions under Section 523. The permissive word 'may' operates in this respect. If an applicant is coming back frequently or frivolously, or both, the court can quickly dismiss the application without putting the prosecutor to the effort of calling evidence or making arguments repeatedly. ... The discretion not to hear an application should be exercised by a court if an alleged victim has testified about traumatic circumstances at an earlier bail hearing. The court before which the defendant is being tried can be relied upon to consider such factors." - See paragraphs 23 and 24.

Words and Phrases

Is being tried - The Nova Scotia Provincial Court discussed the meaning of the phrase "is being tried" as found in s. 523(2)(a) of the Criminal Code, R.S.C. 1985, c. C-46 - See paragraphs 5 to 26.

Words and Phrases

Is to be tried - The Nova Scotia Provincial Court discussed the meaning of the phrase "is to be tried" as found in s. 523(2)(c)(iii) of the Criminal Code, R.S.C. 1985, c. C-46 - See paragraphs 5 to 26.

Cases Noticed:

R. v. Arkison, [1996] B.C.J. No. 2549 (Prov. Ct.), refd to. [para. 7].

R. v. Smith (D.J.) (2003), 214 N.S.R.(2d) 213; 671 A.P.R. 213 (Prov. Ct.), refd to. [para. 11].

R. v. Hardiman (C.L.) (2003), 211 N.S.R.(2d) 358; 662 A.P.R. 358 (C.A.), refd to. [para. 11].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 523(2)(a) [para. 6]; sect. 523(2)(c)(iii) [para. 5].

Counsel:

Cheryl Byard, for the Public Prosecution Service;

Stephen Greener, for himself.

On November 27, 2003, MacDonald, P.C.J., of the Nova Scotia Provincial Court, heard this matter and delivered the following oral judgment.