R. v. Nicotine (N.), 2006 SKPC 6

• Judge: Kolenick, P.C.J.
• Court: Provincial Court of Saskatchewan (Canada)
• Case Date: January 26, 2006
• Jurisdiction: Saskatchewan
• Citations: 2006 SKPC 6;(2006), 276 Sask.R. 1 (PC)

R. v. Nicotine (N.) (2006), 276 Sask.R. 1 (PC)

MLB headnote and full text

Temp. Cite: [2006] Sask.R. TBEd. FE.027

Her Majesty the Queen v. Nicotine (N.)

(Information No. 43393195; 2006 SKPC 6)

Indexed As: R. v. Nicotine (N.)

Saskatchewan Provincial Court

Kolenick, P.C.J.

January 26, 2006.

Summary:

The accused was charged with robbery and breach of a recognizance. Bail was denied and the accused was on remand until he came before the court for trial. The Crown did not have sufficient witnesses to proceed and the court granted the Crown's application for an adjournment without any evidence having been called. The accused applied pursuant to s. 523(2) of the Criminal Code to vacate the detention order. The Crown was not prepared to consent to a review as contemplated in s. 523(2)(c). Therefore, the court only had jurisdiction to consider the review if the accused was in the process of "being tried" as contemplated by s. 523(2)(a).

The Saskatchewan Provincial Court held that pursuant to s. 523(2)(a), the accused was not "being tried" until the calling of evidence in the trial proper had commenced. The court concluded that nothing that had occurred with the accused's charges had the effect of vesting the court with authority to conduct a bail review without the consent of the Crown.

Criminal Law - Topic 3317

Compelling appearance, detention and release - Interim release or detention of accused pending trial or appeal - Jurisdiction of court - [See Criminal Law - Topic 3319 ].

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 - The accused was charged with robbery and breach of a recognizance - Bail was denied and the accused was on remand until he came before the court for trial - The Crown did not have sufficient witnesses to proceed and the court granted the Crown's application for an adjournment without any evidence having been called - The accused applied pursuant to s. 523(2) of the Criminal Code to vacate the detention order - The Crown was not prepared to consent to a review as contemplated in s. 523(2)(c) - Therefore, the court only had jurisdiction to consider the review if the accused was in the process of "being tried" as contemplated by s. 523(2)(a) - The Saskatchewan Provincial Court held that pursuant to s. 523(2)(a), the accused was not "being tried" until the calling of evidence in the trial proper had commenced - The court concluded that nothing that had occurred with the accused's charges had the effect of vesting the court with authority to conduct a bail review without the consent of the Crown.

Criminal Law - Topic 3320

Compelling appearance, detention and release - Interim release or detention of accused pending trial or appeal - Review - [See Criminal Law - Topic 3319 ].

Words and Phrases

Is being tried - The Saskatchewan Provincial Court considered the meaning of the phrase "is being tried" in s. 523(2)(a) of the Criminal Code, R.S.C. 1985, c. C-46 - See paragraphs 5 to 15.

Cases Noticed:

R. v. Basarabas; R. v. Spek, [1982] 2 S.C.R. 730; 46 N.R. 69; 2 C.C.C.(3d) 257, refd to. [para. 5].

R. v. Dennis (1960), 125 C.C.C. 321 (S.C.C.), refd to. [para. 5].

R. v. Greener (S.R.) (2003), 200 N.S.R.(2d) 9; 694 A.P.R. 9 (Prov. Ct.), consd. [para. 5].

R. v. Hill (J.C.) (2005), 239 N.S.R.(2d) 153; 760 A.P.R. 153 (Prov. Ct.), refd to. [para. 5].

R. v. Kell (G.C.) (2004), 227 N.S.R.(2d) 356; 720 A.P.R. 356 (Prov. Ct.), consd. [para. 5].

R. v. McCreery (1996), 110 C.C.C.(3d) 561 (B.C.S.C.), refd to. [para. 5].

R. v. Michaud, [2000] S.J. No. 846 (Prov. Ct.), consd. [para. 5].

R. v. Paul, [1982] 1 S.C.R. 621; 42 N.R. 1; 67 C.C.C.(2d) 97; 138 D.L.R.(3d) 455, refd to. [para. 5].

R. v. Riddle, [1980] 1 S.C.R. 380; 29 N.R. 91; 18 A.R. 525; 48 C.C.C.(2d) 365, refd to. [para. 5].

R. v. E.E.W. (2004), 188 C.C.C.(3d) 467 (Sask. C.A.), refd to. [para. 5].

R. v. Holt (B.B.) (1999), 186 Sask.R. 316 (Prov. Ct.), refd to. [para. 5].

R. v. Smith (D.W.) (2003), 227 Sask.R. 279; 287 W.A.C. 279; 171 C.C.C.(3d) 383 (C.A.), refd to. [para. 5].

R. v. Barrow, [1987] 2 S.C.R. 694; 81 N.R. 321; 87 N.S.R.(2d) 271; 222 A.P.R. 271; 38 C.C.C.(3d) 193, refd to. [para. 9].

R. v. Smith (D.J.) (2003), 214 N.S.R.(2d) 213; 671 A.P.R. 213 (Prov. Ct.), consd. [para. 11].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 523(2) [para. 3].

Authors and Works Noticed:

Ewaschuk, Eugene G., Criminal Pleadings and Practice in Canada (2nd Ed. 1987) (Looseleaf), para. 16:2200 [paras. 6, 14].

Counsel:

Tom Macnab, for the Crown;

Roger Kergoat, for the accused.

This application was heard before Kolenick, P.C.J., of the Saskatchewan Provincial Court, who delivered the following decision on January 26, 2006.

Application dismissed.

Editor: Angela E. McKay