R. v. Matthews (W.K.C.), (2015) 357 N.S.R.(2d) 368 (CA)

• Judge: Fichaud, Farrar and Bryson, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: March 26, 2015
• Jurisdiction: Nova Scotia
• Citations: (2015), 357 N.S.R.(2d) 368 (CA);2015 NSCA 31

R. v. Matthews (W.K.C.) (2015), 357 N.S.R.(2d) 368 (CA);

    1127 A.P.R. 368

MLB headnote and full text

Temp. Cite: [2015] N.S.R.(2d) TBEd. AP.016

William Kenneth Charles Matthews (appellant/respondent on motion) v. Her Majesty the Queen (respondent/applicant on motion)

(CAC 430604; 2015 NSCA 31)

Indexed As: R. v. Matthews (W.K.C.)

Nova Scotia Court of Appeal

Fichaud, Farrar and Bryson, JJ.A.

April 9, 2015.

Summary:

The Nova Scotia Provincial Court, in a decision reported at 2014 NSPC 84, convicted Matthews of two hybrid offences: dangerous operation of a motor vehicle and flight from police pursuit. He was sentenced. Self-represented, he appealed both conviction and sentence to the Nova Scotia Court of Appeal. The Crown brought a motion to dismiss the appeal for lack of jurisdiction. It argued that the appeal was to the Summary Conviction Appeal Court. The Crown acknowledged that it did not expressly elect the mode of proceedings on the hybrid offences.

The Nova Scotia Court of Appeal, per Farrar, J.A., in a decision reported at (2015), 355 N.S.R.(2d) 99; 1123 A.P.R. 99, referred the matter to a panel to determine the jurisdictional issue.

The Nova Scotia Court of Appeal allowed the Crown's motion and dismissed Matthew's appeal. Based on the totality of the circumstances of the proceedings in the Provincial Court, the Court concluded that the matters proceeded summarily and the Court was without jurisdiction to hear the appeal pursuant to s. 675(1) of the Criminal Code.

Courts - Topic 2106

Jurisdiction - Appellate jurisdiction - Court of Appeal - Criminal appeals - [See Criminal Law - Topic 7601 ].

Criminal Law - Topic 2961

Jurisdiction - Appeals - General - [See Criminal Law - Topic 7601 ].

Criminal Law - Topic 3904

Indictable offences - General principles - Choice of procedures - Election by Crown - [See Criminal Law - Topic 7601 ].

Criminal Law - Topic 4921

Appeals - Indictable offences - Appeal to a Court of Appeal - General - [See Criminal Law - Topic 7601 ].

Criminal Law - Topic 7203

Summary conviction proceedings - General principles - Choice of procedure - Election by Crown - [See Criminal Law - Topic 7601 ].

Criminal Law - Topic 7601

Summary conviction appeals - Appeal to a court of appeal - General - The Crown acknowledged that it did not expressly elect the mode of proceedings on the hybrid offences (Criminal Code, ss. 249(1) and 249.1) - The issue to be determined was whether the Court of Appeal had jurisdiction to hear and decide the accused's appeal of conviction and sentence - The Crown argued that the appeal was to the Summary Conviction Appeal Court - The Nova Scotia Court of Appeal held that it was without jurisdiction to hear the appeal - The Crown's failure to elect expressly did not undo the fact that the parties proceeded throughout as if the Crown had elected to proceed summarily - "It can reasonably be inferred from the complete record that the Crown simply forgot to formally state an election on the sections 249(1) and 249.1 offences and that it always intended to proceed summarily. Other additional factors that support the conclusion the Crown proceeded summarily are: i. The offences were not statute barred from proceeding and, therefore, the trial judge had jurisdiction to hear the trial. ii. The Information makes no reference to the offences being by indictment. (Although not determinative or binding on the Crown, it can be a relevant consideration.) iii. The parties went through the various court dates appearing to understand that the matters had proceeded summarily. iv. The appellant was represented by counsel throughout. He raised no objection to the procedure that was followed."

Cases Noticed:

R. v. Dudley (K.L.) (2009), 469 A.R. 198; 470 W.A.C. 198; 2009 SCC 58, refd to. [para. 26].

R. v. R.V.F. (2011), 306 N.S.R.(2d) 247; 968 A.P.R. 247; 2011 NSCA 71, refd to. [para. 27].

R. v. Paul-Marr (J.) (2005), 234 N.S.R.(2d) 6; 745 A.P.R. 6; 2005 NSCA 73, refd to. [para. 27].

R. v. Shea (1976), 16 N.S.R.(2d) 706; 16 A.P.R. 706; 1976 CarswellNS 99 (C.A.), refd to. [para. 27].

Statutes Noticed:

Interpretation Act, R.S.C. 1985, c. I-21, sect. 34(1)(a) [para. 25].

Counsel:

Appellant/respondent on motion, in person;

Marian Fortune-Stone, Q.C., for the respondent/applicant on motion.

This motion was heard on March 26, 2015, in Halifax, Nova Scotia, before Fichaud, Farrar and Bryson, JJ.A., of the Nova Scotia Court of Appeal. In reasons written by Farrar, J.A., the Court delivered the following judgment, dated April 9, 2015.