R. v. Hobbs (K.P.), 2010 NSCA 62

• Judge: Bateman, Oland and Beveridge, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: July 15, 2010
• Jurisdiction: Nova Scotia
• Citations: 2010 NSCA 62;(2010), 293 N.S.R.(2d) 126 (CA)

R. v. Hobbs (K.P.) (2010), 293 N.S.R.(2d) 126 (CA);

    928 A.P.R. 126

MLB headnote and full text

Temp. Cite: [2010] N.S.R.(2d) TBEd. JL.029

Kevin Patrick Hobbs (appellant) v. Her Majesty The Queen (respondent)

(CAC 316120; 2010 NSCA 62)

Indexed As: R. v. Hobbs (K.P.)

Nova Scotia Court of Appeal

Bateman, Oland and Beveridge, JJ.A.

July 15, 2010.

Summary:

The accused was convicted by a jury of drug offences. Prior to sentencing, the Crown disclosed that the police had conducted background checks on the jury pool, and had used that information to exercise its peremptory challenges during jury selection. The trial judge dismissed the accused's application for a mistrial or stay of proceedings for want of jurisdiction on the ground that he was functus officio (289 N.S.R.(2d) 324; 916 A.P.R. 324). The accused was sentenced to 30 months' imprisonment (281 N.S.R.(2d) 372; 893 A.P.R. 372). The accused appealed against conviction and sentence, submitting that the judge "erred in finding he did not have jurisdiction to consider the motion for a mistrial or judicial stay of proceedings and, in any event, there was a miscarriage of justice as a result of the Crown misusing police resources to obtain information about members of the jury pool, failing to disclose this information to the defence, and using the information in the exercise of its peremptory challenges." The Crown conceded that the record checks should have been disclosed. The information had now been disclosed to the accused.

The Nova Scotia Court of Appeal allowed the appeal. The trial judge did not err in finding that he was functus officio after the jury verdict. The non-disclosure of the background checks was not abusive, so a stay of proceedings was not appropriate. However, the non-disclosure gave the Crown an unfair advantage. The Crown conceded that disclosure of the information probably would have led the accused to exercise his peremptory challenges differently. The Crown conceded that a new trial was appropriate, which was what the court ordered.

Civil Rights - Topic 3157.4

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Abuse of process - [See Criminal Law - Topic 4310.3 ].

Courts - Topic 2186

Jurisdiction - Loss or termination of jurisdiction upon fulfilling function (functus officio) - Prosecutions or criminal trials - The accused was convicted by a jury - Before sentencing, the Crown disclosed that the police had conducted background checks on the jury pool and used that information during its peremptory challenges during jury selection - The trial judge dismissed the accused's application for a mistrial or stay of proceedings - The judge held that once the verdict was rendered and the jury was discharged, he was functus officio and lacked jurisdiction to hear the application - The court had no residual jurisdiction to declare a mistrial or grant a stay of proceedings - The Nova Scotia Court of Appeal agreed, stating the "once the jury verdict has been recorded and the jury discharged, there is a very narrow jurisdiction for a trial judge to do anything but sentence the offender. The jurisdiction is limited to dealing with an issue of receiving and recording the jury's true verdict" - See paragraph 11.

Criminal Law - Topic 253

General principles - Abuse of process - What constitutes - [See Criminal Law - Topic 4310.3 ].

Criminal Law - Topic 4310.3

Procedure - Jury - General - Jury pool - Background checks - The accused was convicted by a jury of drug offences - Prior to sentencing, the Crown disclosed that it had the police conduct background checks on the 323 person jury pool, of which 30 were randomly selected for possible jury service at this trial - The Crown used that information to exercise its peremptory challenges during jury selection - The accused claimed abuse of process entitling it to a stay of proceedings - The Crown conceded that the information should have been disclosed and that had the information been disclosed the accused probably would have exercised its 12 peremptory challenges differently - However, the Crown argued that the appropriate remedy was a new trial, not a stay of proceedings - The Nova Scotia Court of Appeal ordered a new trial - Jury selection was an integral part of the fair trial process - To maintain public confidence in the administration of justice, the jury selection process must not only be fair, but appear to be fair - The undisclosed information gave the Crown an unfair advantage in selecting the jury - There was no abuse of process - The Crown's intention in seeking the background information was to ensure the trial was impartial - There was no suggestion that the jury was not impartial - Even if the non-disclosure was abusive conduct, a stay of proceedings was not appropriate - This case involved an appearance of unfairness - There was no evidence that the accused was prejudiced by requiring a new trial, which was the most appropriate remedy - The court noted that Crown policy changed, limiting the scope of background checks and requiring disclosure to an accused.

Criminal Law - Topic 4486

Procedure - Trial - Stay of proceedings - [See Criminal Law - Topic 4310.3 ].

Criminal Law - Topic 4640

Procedure - Mistrials - Jury trial - Jurisdiction of judge to grant - [See Courts - Topic 2186 ].

Criminal Law - Topic 4963

Appeals - Indictable offences - New trials - Grounds - Lack of appearance of justice - [See Criminal Law - Topic 4310.3 ].

Cases Noticed:

R. v. Head, [1986] 2 S.C.R. 684; 70 N.R. 364; 53 Sask.R. 1, refd to. [para. 11].

R. v. Burke (H.P.) (2002), 290 N.R. 71; 160 O.A.C. 271 (S.C.C.), refd to. [para. 11].

R. v. Gumbly (D.) (1996), 155 N.S.R.(2d) 117; 457 A.P.R. 117 (C.A.), refd to. [para. 11].

R. v. Lawrence (D.C.) (2001), 192 N.S.R.(2d) 43; 599 A.P.R. 43; 2001 NSCA 44, refd to. [para. 11].

R. v. Halcrow (J.T.) (2008), 437 A.R. 314; 433 W.A.C. 314; 2008 ABCA 319, refd to. [para. 11].

R. v. Latimer (R.W.), [1997] 1 S.C.R. 217; 207 N.R. 215; 152 Sask.R. 1; 140 W.A.C. 1, dist. [para. 25].

R. v. Dixon (S.), [1998] 1 S.C.R. 244; 222 N.R. 243; 166 N.S.R.(2d) 241; 498 A.P.R. 241, refd to. [para. 30].

R. v. Barrow, [1987] 2 S.C.R. 694; 81 N.R. 321; 87 N.S.R.(2d) 271; 222 A.P.R. 271, refd to. [para. 33].

R. v. Sherratt, [1991] 1 S.C.R. 509; 122 N.R. 241; 73 Man.R.(2d) 161; 3 W.A.C. 161, refd to. [para. 35].

R. v. Bain, [1992] 1 S.C.R. 91; 133 N.R. 1; 51 O.A.C. 161, refd to. [para. 36].

R. v. O'Connor (H.P.), [1995] 4 S.C.R. 411; 191 N.R. 1; 68 B.C.A.C. 1; 112 W.A.C. 1, refd to. [para. 42].

Canada (Minister of Citizenship and Immigration) v. Tobiass et al., [1997] 3 S.C.R. 391; 218 N.R. 81, refd to. [para. 43].

R. v. Regan (G.A.), [2002] 1 S.C.R. 297; 282 N.R. 1; 201 N.S.R.(2d) 63; 629 A.P.R. 63, refd to. [para. 43].

Counsel:

Luke A. Craggs, for the appellant;

Ann Marie Simmons, for the respondent.

This appeal was heard on June 3, 2010, at Halifax, N.S., before Bateman, Oland and Beveridge, JJ.A., of the Nova Scotia Court of Appeal.

On July 15, 2010, Beveridge, J.A., delivered the following judgment for the Court of Appeal.