R. v. Kell (G.C.), 2004 NSPC 54

• Judge: Embree, P.C.J.
• Court: Provincial Court of Nova Scotia (Canada)
• Case Date: August 26, 2004
• Jurisdiction: Nova Scotia
• Citations: 2004 NSPC 54;(2004), 227 N.S.R.(2d) 356 (PC)

R. v. Kell (G.C.) (2004), 227 N.S.R.(2d) 356 (PC);

 720 A.P.R. 356

MLB headnote and full text

Temp. Cite: [2004] N.S.R.(2d) TBEd. OC.034

Her Majesty the Queen v. Gerald Charles Kell

(1442724; 1442725; 1445648; 1445649; 1445488; 2004 NSPC 54)

Indexed As: R. v. Kell (G.C.)

Nova Scotia Provincial Court

Embree, P.C.J.

August 26, 2004.

Summary:

The accused was charged with five summary conviction offences. The accused was granted judicial interim release and released on an undertaking with a series of conditions. Subsequently, he entered not guilty pleas and a trial date was set. The accused applied to vary a condition of his release. The Crown contended that the court had no jurisdiction to deal with the application without the Crown's consent under s. 523(2)(c)(iii) of the Criminal Code, which it was not providing.

The Nova Scotia Provincial Court held that it had jurisdiction to hear the application without the Crown's consent under s. 523(2)(a) of the Criminal Code as the accused was "being tried".

Criminal Law - Topic 3317

Compelling appearance, detention and release - Interim release or detention of accused pending trial or appeal - Jurisdiction of court - The accused was charged with five summary conviction offences - The accused was granted judicial interim release and released on an undertaking with a series of conditions - Subsequently, he entered not guilty pleas and a trial date was set - The accused applied to vary a condition of his release - The Crown contended that the court had no jurisdiction to deal with the application without the Crown's consent under s. 523(2)(c)(iii) of the Criminal Code, which it was not providing - The Nova Scotia Provincial Court held that it had jurisdiction to hear the application without the Crown's consent under s. 523(2)(a) of the Criminal Code as the accused was "being tried".

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 4476

Procedure - Trial - Commencement of - When - The Nova Scotia Provincial Court stated that "The entry of plea is a logical and easily definable position in the process for it to be concluded, for the purposes of s. 523(2) [of the Criminal Code], that a defendant or accused 'is being tried'. Once a plea is entered, the defendant is in jeopardy in relation to the matter. The entry of a plea gives the Provincial Court the jurisdiction and ability to deal with a series of issues related to the trial and the trial process." - See paragraph 15.

Words and Phrases

Being tried - The Nova Scotia Provincial Court discussed the meaning of this phrase as found in s. 523(2)(a) of the Criminal Code, R.S.C. 1985, c. C-46 - See paragraphs 2 to 17.

Words and Phrases

Is being tried - The Nova Scotia Provincial Court discussed the meaning of this phrase as found in s. 523(2)(a) of the Criminal Code, R.S.C. 1985, c. C-46 - See paragraphs 2 to 17.

Cases Noticed:

R. v. Hardiman (C.L.) (2002), 208 N.S.R.(2d) 24; 652 A.P.R. 24; 2002 NSSC 208, dist. [para. 4].

R. v. Hardiman (C.L.) (2003), 211 N.S.R.(2d) 358; 662 A.P.R. 358; 2003 NSCA 17, dist. [para. 4].

R. v. Smith (D.J.) (2003), 214 N.S.R.(2d) 213; 671 A.P.R. 213; 2003 NSPC 8, refd to. [para. 4].

R. v. Greener (S.R.) (2003), 220 N.S.R.(2d) 9; 694 A.P.R. 9; 2003 NSPC 58, disagreed with [para. 4].

R. v. McCreery (1996), 110 C.C.C.(3d) 561 (B.C.S.C.), refd to. [para. 4].

R. v. Badgerow, [2000] O.J. No. 5442 (Sup. Ct.), refd to. [para. 4].

R. v. Nickerson, [2002] N.S.J. No. 356 (S.C.), refd to. [para. 4].

R. v. Sood, [1992] O.J. No. 2842 (Gen. Div.), refd to. [para. 4].

R. v. Patterson (1985), 59 A.R. 163; 19 C.C.C.(3d) 149 (C.A.), refd to. [para. 4].

R. v. Arkison, [1996] B.C.J. No. 2549 (Prov. Ct.), refd to. [para. 4].

R. v. Holt (B.B.) (1999), 186 Sask.R. 316 (Prov. Ct.), refd to. [para. 4].

R. v. Michaud, [2000] S.J. No. 846 (Prov. Ct.), refd to. [para. 4].

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. 4].

R. v. Basarabas; R. v. Spek, [1982] 2 S.C.R. 730; 46 N.R. 69, refd to. [para. 7].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 523(2) [para. 2].

Counsel:

Allen Murray, for the Crown;

Lawrence O'Neil, for the defendant.

This application was heard at Antigonish, Nova Scotia, on August 26, 2004, by Embree, P.C.J., of the Nova Scotia Provincial Court, who delivered the following oral decision on August 26, 2004, which was filed on October 27, 2004.