R. v. MacIntosh (E.F.), 2010 NSCA 77

• Judge: Fichaud, J.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: October 07, 2010
• Jurisdiction: Nova Scotia
• Citations: 2010 NSCA 77;(2010), 295 N.S.R.(2d) 179 (CA)

R. v. MacIntosh (E.F.) (2010), 295 N.S.R.(2d) 179 (CA);

    935 A.P.R. 179

MLB headnote and full text

Temp. Cite: [2010] N.S.R.(2d) TBEd. OC.012

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

(CAC 333361; 2010 NSCA 77)

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

Nova Scotia Court of Appeal

Fichaud, J.A.

October 7, 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 his conviction appeal.

The Nova Scotia Court of Appeal, per Farrar, J.A., denied the motion as premature because MacIntosh had not yet been sentenced. Following sentencing, MacIntosh moved for release pending his conviction appeal.

The Nova Scotia Court of Appeal, per Fichaud, J.A., granted 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, following sentencing, moved for release pending the appeal - The Crown opposed the motion, asserting, inter alia, that the accused, who had been extradited from India to face the charges, was a flight risk and that, as the accused's offences were "reprehensible", interim release would damage public confidence in the judicial system - The Nova Scotia Court of Appeal, per Fichaud, J.A., granted the motion - The three prerequisites for release, as stated in s. 679(3) of the Criminal Code, were established - First, the appeal was not frivolous - Second, the court was satisfied that the accused would surrender into custody in accordance with the terms of an interim release order - The accused had never failed to appear or to abide by his release conditions since he was first released on bail over three years previously - Finally, as the offences had occurred 30 years previously, it was difficult to infer a risk of reoffence during interim release - The conditions of house arrest would alleviate any remaining concerns - As to the public interest, the court noted that interim release was not a moral judgment that absolved, condoned or mitigated the judicial reaction to the reprehensible conduct for which the accused was convicted - Section 679(3) enacted a public policy that an accused with an arguable appeal, who would respect the rules by surrendering and would not use interim liberty for harm, would have his or her appeal determined before the sentence was served - A reasonable person, informed of this policy, would suffer no shaken confidence in the administration of justice.

Cases Noticed:

R. v. Cox (K.H.) (2009), 274 N.S.R.(2d) 364; 874 A.P.R. 364; 2009 NSCA 15, refd to. [para. 6].

R. v. Ryan (J.D.P.) (2004), 226 N.S.R.(2d) 247; 714 A.P.R. 247; 2004 NSCA 105, refd to. [para. 18].

R. v. Barry (S.D.) (2004), 227 N.S.R.(2d) 227; 720 A.P.R. 227; 2004 NSCA 126, refd to. [para. 18].

Counsel:

Brian Casey, for the appellant;

Mark Scott, for the respondent.

This motion was heard and determined orally in Chambers on October 7, 2010, by Fichaud, J.A., of the Nova Scotia Court of Appeal, who delivered the following written reasons on October 8, 2010.