R. v. Reddick (J.N.), (2011) 301 N.S.R.(2d) 73 (SC)

• Judge: Cacchione, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: February 14, 2011
• Jurisdiction: Nova Scotia
• Citations: (2011), 301 N.S.R.(2d) 73 (SC);2011 NSSC 95

R. v. Reddick (J.N.) (2011), 301 N.S.R.(2d) 73 (SC);

    953 A.P.R. 73

MLB headnote and full text

Temp. Cite: [2011] N.S.R.(2d) TBEd. MR.027

Her Majesty the Queen (appellant/Crown) v. Joseph Nolan Reddick (respondent)

(PIC 336979; 2011 NSSC 95)

Indexed As: R. v. Reddick (J.N.)

Nova Scotia Supreme Court

Cacchione, J.

March 7, 2011.

Summary:

The accused was charged with three summary conviction offences. He had recently begun serving a sentence in a federal penitentiary for unrelated matters. The Crown failed to obtain a prisoner transport order (Criminal Code, s. 527) in time to ensure the accused's attendance in court for his trial. The Crown sought an adjournment. The accused opposed the application.

The Nova Scotia Provincial Court, in a decision reported at 295 N.S.R.(2d) 16; 935 A.P.R. 16, refused the adjournment. The court found that the accused's s. 7 rights were violated and stayed the proceedings. The Crown appealed

The Nova Scotia Supreme Court allowed the appeal in part. The court set aside the stay but dismissed the charges against the accused for want of prosecution.

Civil Rights - Topic 8374

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Stay of proceedings - The accused was charged with three summary conviction offences - He had recently begun serving a sentence in a federal penitentiary for unrelated matters - The Crown failed to obtain a prisoner transport order (Criminal Code, s. 527) in time to ensure the accused's attendance in court for his trial - The Crown sought an adjournment - The trial judge refused the adjournment - He found that the accused's s. 7 rights were violated and stayed the proceedings - The Crown appealed - The Nova Scotia Supreme Court held that the trial judge erred by entering a stay of proceedings - He did not exercise his discretion judicially - A stay was to be granted only as a last resort and only in the clearest of cases - The trial judge simply stating that this was one of those clearest of cases - That was insufficient - There had to be an explanation of why a lesser remedy was not appropriate or what irreparable prejudice would be caused to the judicial system - The court set aside the stay but dismissed the charges against the accused for want of prosecution - See paragraphs 52 to 70.

Courts - Topic 560

Judges - Powers - Authority to act ex mero motu (on own motion) - The accused was charged with three summary conviction offences - He had recently begun serving a sentence in a federal penitentiary for unrelated matters - The Crown failed to obtain a prisoner transport order (Criminal Code, s. 527) in time to ensure the accused's attendance in court for his trial - The Crown sought an adjournment - The accused opposed the application - The trial judge refused the adjournment - He found that the accused's s. 7 rights were violated and stayed the proceedings - The Crown appealed, arguing that the trial judge erred by making an application for Charter relief on its own motion notwithstanding that the accused was represented by counsel - The Nova Scotia Supreme Court held that it could not conclude that the trial judge erred by raising on his own motion an application for Charter relief - Courts were the legal guardians of the Constitution and of the rights of citizens contained in the Charter - See paragraphs 45 to 51.

Criminal Law - Topic 127

General principles - Rights of accused - Right to be present at trial - [See Civil Rights - Topic 8374 ].

Criminal Law - Topic 4485

Procedure - Trial - Adjournments - The accused was charged with three summary conviction offences - He had recently begun serving a sentence in a federal penitentiary for unrelated matters - The Crown failed to obtain a prisoner transport order (Criminal Code, s. 527) in time to ensure the accused's attendance in court for his trial - The Crown sought an adjournment - The trial judge refused to grant an adjournment - The Crown appealed, arguing that the trial judge erred in not granting an adjournment as the application was made in a timely fashion and the accused was not prejudiced as he was in prison - The Nova Scotia Supreme Court rejected the argument - The "transportation issue" was entirely the making of the Crown's lack of diligence in obtaining a s. 527 order in a timely fashion - The granting of an adjournment was a discretionary matter - It could not be said that the trial judge did not act judiciously - This was the second application by the Crown for an adjournment - It had not presented a satisfactory explanation for its lack of diligence in securing the accused's attendance - The accused did face potential prejudice - The "no prejudice" argument was simply an attempt to deflect attention from the Crown's responsibility to ensure the accused's attendance in these circumstances and its failure to discharge that responsibility - See paragraphs 31 to 44.

Criminal Law - Topic 4485

Procedure - Trial - Adjournments - [See Civil Rights - Topic 8374 ].

Criminal Law - Topic 4487

Procedure - Trial - Attendance of accused - [See Civil Rights - Topic 8374 ].

Criminal Law - Topic 4562

Procedure - Trial - Motions - Motion for dismissal for want of prosecution - [See Civil Rights - Topic 8374 ].

Evidence - Topic 2206

Special modes of proof - Judicial notice - General principles - Criminal cases - The accused was charged with three summary conviction offences - He had recently begun serving a sentence in a federal penitentiary for unrelated matters - The Crown failed to obtain a prisoner transport order (Criminal Code, s. 527) in time to ensure the accused's attendance in court for his trial - The Crown sought an adjournment - The accused opposed the application - The trial judge refused the adjournment, held that the accused's s. 7 rights were violated and stayed the proceedings - The Crown appealed - It argued that the trial judge erred in taking judicial notice of a minimum of two weeks notice requirement for transportation of federal inmates to court in response to a transport order issued pursuant to s. 527 - In doing so, he relied on his own personal experience based on his previous employment as a Crown Attorney and "descended into the arena" - The Nova Scotia Supreme Court rejected the argument - The Crown had urged the trial judge to consider his previous experience as a Crown Attorney - To suggest to the trial judge that his knowledge with regards to the obtaining of s. 527 orders and the practice involved in executing s. 527 orders, gained as a former Crown Attorney, should be used in assessing the Crown's request for an adjournment and to then argue on appeal that the judge erred by considering this previous knowledge and thus "descended into the arena" was an argument which "lacks candour and is without merit" - See paragraphs 23 to 26.

Cases Noticed:

R. v. MacDonald (I.L.) (1989), 94 N.S.R.(2d) 220; 247 A.P.R. 220 (Prov. Ct.), refd to. [para. 11].

R. v. Fuhrer (M.R.) (2007), 413 A.R. 385 (Q.B.), refd to. [para. 11].

R. v. Nickerson (W.S.) (1999), 178 N.S.R.(2d) 189; 549 A.P.R. 189; 1999 NSCA 168, refd to. [para. 21].

R. v. Smith (J.J.) (1989), 35 O.A.C. 301; 52 C.C.C.(3d) 90 (C.A.), refd to. [para. 41].

R. v. Hazlewood (G.A.) et al. (1994), 42 B.C.A.C. 44; 67 W.A.C. 44 (C.A.), refd to. [para. 41].

R. v. Arbour, 1990 CarswellOnt 892 (C.A.), refd to. [para. 47].

R. v. Travers (R.H.) (2001), 193 N.S.R.(2d) 263; 602 A.P.R. 263 (C.A.), refd to. [para. 47].

R. v. Boron (1983), 8 C.C.C.(3d) 25 (Ont. H.C.), refd to. [para. 48].

R. v. Braun (C.D.), [2003] A.R. Uned. 228; 2003 ABQB 273, refd to. [para. 48].

Canada (Minister of Citizenship and Immigration) v. Tobiass et al., [1997] 3 S.C.R. 391; 218 N.R. 81, refd to. [para. 53].

R. v. Spinney (C.L.) (2010), 287 N.S.R.(2d) 136; 912 A.P.R. 136; 2010 NSCA 4, refd to. [para. 54].

R. v. O'Connor (H.P.), [1995] 4 S.C.R. 411; 191 N.R. 1; 68 B.C.A.C. 1; 112 W.A.C. 1, refd to. [para. 60].

R. v. Regan (G.A.), [2002] 1 S.C.R. 297; 282 N.R. 1; 201 N.S.R.(2d) 63; 629 A.P.R. 63, refd to. [para. 60].

R. v. Boutin (A.) (1998), 170 Sask.R. 245 (Q.B.), refd to. [para. 61].

Counsel:

T.W. Gorman, for the appellant/Crown;

Douglas Lloy, for the respondent.

This appeal was heard on February 14, 2011, in Pictou, Nova Scotia, before Cacchione, J., of the Nova Scotia Supreme Court, who delivered the following decision on March 7, 2011.