R. v. MacIntosh (E.F.), (2010) 293 N.S.R.(2d) 327 (CA)

• Judge: Farrar, J.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: August 12, 2010
• Jurisdiction: Nova Scotia
• Citations: (2010), 293 N.S.R.(2d) 327 (CA);2010 NSCA 68

R. v. MacIntosh (E.F.) (2010), 293 N.S.R.(2d) 327 (CA);

    928 A.P.R. 327

MLB headnote and full text

Temp. Cite: [2010] N.S.R.(2d) TBEd. AU.013

Ernest Fenwick MacIntosh (appellant/applicant) v. Her Majesty the Queen (respondent)

(CAC 333361; 2010 NSCA 68)

Indexed As: R. v. MacIntosh (E.F.)

Nova Scotia Court of Appeal

Farrar, J.A.

August 13, 2010.

Summary:

MacIntosh was charged on three informations with a total of 43 counts of sexual offences against nine complainants in the 1970s. The first information was laid in 1995 and the remaining two in 2001. At the time, MacIntosh was living in India. The Crown sought extradition. MacIntosh was returned to Canada. MacIntosh sought an order prohibiting the Provincial Court from proceeding with the informations.

The Nova Scotia Supreme Court, in a decision reported at (2008), 266 N.S.R.(2d) 121; 851 A.P.R. 121, dismissed the application. MacIntosh appealed the dismissal and asked the Court of Appeal to stay the preliminary inquiry pending the determination of the appeal.

The Nova Scotia Court of Appeal, per Bateman, J.A., in a decision reported at (2008), 268 N.S.R.(2d) 131; 857 A.P.R. 131, dismissed the application. The appeal proceeded.

The Nova Scotia Court of Appeal, in a decision reported at (2008), 72 N.S.R.(2d) 286; 869 A.P.R. 286, dismissed the appeal. MacIntosh applied for a stay of proceedings under ss. 7 and 11(b) of the Charter, asserting unreasonable pre-charge and post-charge delay.

The Nova Scotia Supreme Court, in a decision reported at (2010), 289 N.S.R.(2d) 224; 916 A.P.R. 224, dismissed the application. The trial proceeded on 26 counts regarding three complainants.

The Nova Scotia Supreme Court, in a decision reported at (2010), 292 N.S.R.(2d) 355; 925 A.P.R. 355, convicted MacIntosh on 13 counts and acquitted him on 13 counts. MacIntosh appealed and, prior to sentencing, moved for release pending appeal.

The Nova Scotia Court of Appeal, per Farrar, J.A., denied the motion.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Criminal Law - Topic 3310

Compelling appearance, detention and release - Interim release or detention of accused pending trial or appeal - Release pending appeal - The accused was convicted on 13 counts of historical sexual assault - He had been released on bail prior to his trial and conviction - Following his conviction, he sought release pending sentencing - The trial judge refused the request - The accused appealed from his convictions and, one month prior to sentencing, moved for release pending the appeal - The Nova Scotia Court of Appeal, per Farrar, J.A., denied the motion - In situations where the accused was applying for release from custody on an appeal from conviction, notwithstanding that the accused had not been sentenced, the jurisdiction to release was only to be exercised in unusual and limited circumstances - The court rejected the accused's argument that the 13 months that he had spent in custody prior to his release pending trial constituted unusual circumstances - The court's role was to determine whether unusual circumstances existed at present - The pre-conviction custody, which was properly imposed, was not a consideration at this stage - Further, the same argument was considered and rejected by the trial judge - There was no reason to interfere with that exercise of discretion.

Cases Noticed:

R. v. Hart (W.A.) (1998), 172 N.S.R.(2d) 194; 524 A.P.R. 194 (C.A.), refd to. [para. 6].

R. v. W.A.H. - see R. v. Hart (W.A.).

R. v. Morris (1985), 10 O.A.C. 245; 21 C.C.C.(3d) 242 (C.A.), refd to. [para. 6].

R. v. N.A.A. (1995), 145 N.S.R.(2d) 225; 418 A.P.R. 225 (C.A.), refd to. [para. 14].

Authors and Works Noticed:

Trotter, Gary T., The Law of Bail in Canada (2nd Ed. 1999), p. 373 [para. 9].

Counsel:

Brian Casey, for the appellant/applicant;

Mark Scott, for the respondent.

This motion was heard in Chambers on August 12, 2010, by Farrar, J.A., of the Nova Scotia Court of Appeal, who delivered the following decision on August 13, 2010.