R. v. Ramalheira (J.A.S.), 2009 NLCA 4

JudgeWells, C.J.N.L., Rowe and Barry, JJ.A.
CourtCourt of Appeal (Newfoundland)
Case DateNovember 14, 2008
JurisdictionNewfoundland and Labrador
Citations2009 NLCA 4;(2009), 282 Nfld. & P.E.I.R. 29 (NLCA)

R. v. Ramalheira (J.A.S.) (2009), 282 Nfld. & P.E.I.R. 29 (NLCA);

    868 A.P.R. 29

MLB headnote and full text

Temp. Cite: [2009] Nfld. & P.E.I.R. TBEd. JA.020

Jose Alberta Senos Ramalheira (appellant) v. Her Majesty the Queen (first respondent) and Provincial Court Judge Gloria Harding (second respondent)

(08/51; 2009 NLCA 4)

Indexed As: R. v. Ramalheira (J.A.S.)

Newfoundland and Labrador Supreme Court

Court of Appeal

Wells, C.J.N.L., Rowe and Barry, JJ.A.

January 21, 2009.

Summary:

Ramalheira was charged with unlawfully fishing inside Canada's 200 mile economic zone. The trial was postponed three times at the request of the defence on the basis that Ramalheira was ill and unable to travel to Canada. The defence made a further request for a postponement due to Ramalheira's ill health. Harding, P.C.J., denied the request and ruled that the trial proceed. Ramalheira applied for a writ of prohibition with certiorari in aid to enjoin the Provincial Court of Newfoundland and Labrador from proceeding with his trial.

The Newfoundland and Labrador Supreme Court, Trial Division, in a decision reported at 281 Nfld. & P.E.I.R. 335; 863 A.P.R. 335, declined to grant the prerogative relief sought. Ramalheira appealed.

The Newfoundland and Labrador Court of Appeal, Barry, J.A., dissenting, dismissed the appeal.

Criminal Law - Topic 127

General principles - Rights of accused - Right to be present at trial - [See Criminal Law - Topic 7152 ].

Criminal Law - Topic 7152

Extraordinary remedies - Prohibition - When available - Ramalheira was charged with unlawfully fishing inside Canada's 200 mile economic zone - The trial was postponed three times at the request of the defence on the basis that Ramalheira was ill and unable to travel to Canada - The defence made a further request for a postponement due to Ramalheira's ill health - Harding, P.C.J., denied the request and ruled that the trial proceed - Ramalheira applied for a writ of prohibition with certiorari in aid to enjoin the Provincial Court from proceeding with his trial - The defence argued that it was wrong, and a violation of Ramalheira's Charter rights, for the Provincial Court to proceed to trial in his absence - The Newfoundland and Labrador Supreme Court, Trial Division, dismissed the application - The court stated that whether Harding, P.C.J.'s decision was right or wrong, she did not commit any jurisdictional error in making it - She acted within her lawful jurisdiction and her ruling could be appealed in due course if necessary - There was no jurisdictional error, nor any error on the face of the record or unusual circumstances calling for an extraordinary remedy - The Newfoundland and Labrador Court of Appeal dismissed an appeal - Harding, P.C.J., decided a matter within her jurisdiction - Whether she did so correctly was a matter for any appeal that might follow - The court stated that extraordinary remedies "must not become a vehicle for de facto appeals of interlocutory decisions in criminal matters" - See paragraphs 1 to 33.

Cases Noticed:

R. v. Skogman, [1984] 2 S.C.R. 93; 54 N.R. 34, refd to. [para. 6].

Johnson v. R. (1991), 44 O.A.C. 249; 64 C.C.C.(3d) 20 (C.A.), refd to. [para. 8].

R. v. Duvivier et al. - see Johnson v. R.

Canadian Broadcasting Corp. v. Dagenais et al., [1994] 3 S.C.R. 835; 175 N.R. 1; 76 O.A.C. 81, refd to. [para. 36].

R. v. Salituro, [1991] 3 S.C.R. 654; 131 N.R. 161; 50 O.A.C. 125, refd to. [para. 36].

R. v. McLeod (1983), 49 A.R. 321; 10 W.C.B. 431 (N.W.T.S.C.), refd to. [para. 39].

R. v. Ralph (S.) (2008), 281 Nfld. & P.E.I.R. 324; 863 A.P.R. 324; 2008 NLCA 70, refd to. [para. 41].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 650(1), sect. 803(1), sect. 803(2) [para. 14].

Counsel:

John R. Sinnott, Q.C., and Andrew A. Fitzgerald, for the appellant;

Mark A. Stares, for the first respondent;

The second respondent not represented.

This appeal was heard on November 14, 2008, before Wells, C.J.N.L., Rowe and Barry, JJ.A., of the Newfoundland and Labrador Court of Appeal. The judgment of the Court of Appeal was delivered on January 21, 2009, including the following opinions:

Rowe, J.A. (Wells, C.J.N.L concurring) - see paragraphs 1 to 33;

Barry, J.A., dissenting - see paragraphs 34 to 42.

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