R. v. Smith (D.W.),

• Jurisdiction: Saskatchewan
• Judge: Bayda, C.J.S., Tallis and Cameron, JJ.A.
• Neutral Citation: 2003 SKCA 8
• Court: Court of Appeal (Saskatchewan)
• Date: 04 November 2002
• Citation: 2003 SKCA 8,(2003), 227 Sask.R. 279 (CA),[2003] 5 WWR 30,171 CCC (3d) 383,9 CR (6th) 12,[2003] CarswellSask 26,[2003] SJ No 30 (QL),227 Sask R 279,287 WAC 279,227 Sask.R. 279,287 W.A.C. 279,[2003] S.J. No 30 (QL),(2003), 227 SaskR 279 (CA),227 SaskR 279

R. v. Smith (D.W.) (2003), 227 Sask.R. 279 (CA);

    287 W.A.C. 279

MLB headnote and full text

Temp. Cite: [2003] Sask.R. TBEd. JA.078

Her Majesty the Queen (applicant) v. Daren Wayne Smith (respondent)

(No. 538; 2003 SKCA 8)

Indexed As: R. v. Smith (D.W.)

Saskatchewan Court of Appeal

Bayda, C.J.S., Tallis and Cameron, JJ.A.

January 24, 2003.

Summary:

Smith was charged with drug offences. A Provincial Court judge granted him bail. In alternating applications, the Crown and Smith each twice successfully applied for review of the bail order. When the Crown filed its third review application, the fifth in this matter without any material change in circumstances, a single appellate judge referred the application to the Court of Appeal for a determination of whether this fifth application was "properly conceived".

The Saskatchewan Court of Appeal held that only the first review application was properly brought. The four subsequent applications were made without jurisdiction, and were nullities.

Editor's note: For prior related decisions, see 222 Sask.R. 118 (Q.B.), 224 Sask.R. 92 (Q.B.), 223 Sask.R. 133; 277 W.A.C. 133 (C.A.), and 225 Sask.R. 303 (Q.B.).

Criminal Law - Topic 3311

Compelling appearance, detention and release - Interim release or detention of accused pending trial or appeal - Power of Court of Appeal - Smith was charged with drug offences - A Provincial Court judge granted him bail - In alternating applications, the Crown and Smith each twice successfully applied for review of the bail order - When the Crown filed its third review application, the fifth in this matter without any material change in circumstances, a single appellate judge referred the application to the Court of Appeal for a determination of whether this fifth application was "properly conceived" - Smith objected to the court's jurisdiction to hear the application on its merits - The Saskatchewan Court of Appeal opined, without deciding the point, that the three appellate judges present were able to hear the application on its merits in their capacity, individual or collective, as superior court judges rather than as the Court of Appeal - See paragraphs 22 to 28.

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 3311 ].

Criminal Law - Topic 3317

Compelling appearance, detention and release - Interim release or detention of accused pending trial or appeal - Jurisdiction of court - Smith was charged with drug offences - A Provincial Court judge granted him bail - In alternating applications, the Crown and Smith each twice successfully applied for review of the bail order - When the Crown filed its third review application, the fifth in this matter without any material change in circumstances, a single appellate judge referred the application to the Court of Appeal for a determination of whether this fifth application was "properly conceived" - The Saskatchewan Court of Appeal held that only the first review application was properly brought - The four subsequent applications were made without jurisdiction, and were nullities, because the right to apply for review under ss. 520 or 521 of the Criminal Code was confined to applying to a judge for review of an order made by a justice - To hold otherwise would result in the parties having the right to a form of lateral review by judges of coordinate jurisdiction, an uncommon concept in the law - See paragraphs 29 to 78.

Criminal Law - Topic 3318

Compelling appearance, detention and release - Interim release or detention of accused pending trial or appeal - Application of Code procedure - [See second Criminal Law - Topic 3317 ].

Criminal Law - Topic 3320

Compelling appearance, detention and release - Interim release or detention of accused pending trial or appeal - Review - [See second Criminal Law - Topic 3317 ].

Cases Noticed:

R. v. Denbigh, [1989] B.C.J. No. 733 (C.A.), refd to. [para. 26].

R. v. Mallett (D.W.) (No. 2) (1992), 83 Man.R.(2d) 116; 36 W.A.C. 116; 75 C.C.C.(3d) 251 (C.A.), refd to. [para. 26].

R. v. Zarubin (G.) (1999), 180 Sask.R. 113; 205 W.A.C. 113 (C.A.), refd to. [para. 26].

R. v. Zarubin, [1996] S.J. No. 501 (C.A.), refd to. [para. 27].

Rizzo & Rizzo Shoes Ltd. (Bankrupt), Re, [1998] 1 S.C.R. 27; 221 N.R. 241; 106 O.A.C. 1, refd to. [para. 32].

R. v. Carrier (1979), 2 Man.R.(2d) 168; 51 C.C.C.(2d) 307 (C.A.), refd to. [para. 41].

Willick v. Willick, [1994] 3 S.C.R. 670; 173 N.R. 321; 125 Sask.R. 81; 81 W.A.C. 81, refd to. [para. 49].

Dergousoff v. Dergousoff, [1999] 10 W.W.R. 633; 177 Sask.R. 64; 199 W.A.C. 64 (C.A.), refd to. [para. 49].

R. v. Zeolkowski, [1989] 1 S.C.R. 1378; 95 N.R. 149; 58 Man.R.(2d) 63, refd to. [para. 50].

R. v. Crellin, [1976] 6 W.W.R. 661 (Man. C.A.), refd to. [para. 58].

R. v. Patterson (1985), 59 A.R. 163; 19 C.C.C.(3d) 149 (C.A.), refd to. [para. 58].

R. v. Saracino (1989), 47 C.C.C.(3d) 185 (Ont. H.C.), refd to. [para. 68].

R. v. Lahooti (1978), 38 C.C.C.(2d) 481 (Ont. H.C.), refd to. [para. 70].

R. v. Gouveia (1982), 1 C.C.C.(3d) 143 (Ont. H.C.), refd to. [para. 70].

R. v. Sterling (R.) (1993), 113 Sask.R. 81; 52 W.A.C. 81; 84 C.C.C.(3d) 65 (C.A.), refd to. [para. 76].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 515(6)(d), sect. 515(7), sect. 515(10) [para. 6]; sect. 520(1), sect. 520(7), sect. 520(8) [para. 17]; sect. 521(1), sect. 521(8), sect. 521(9) [para. 14]; sect. 523(2) [para. 60]; sect. 525 [para 64].

Counsel:

Alan G. McIntyre and Douglas Curliss, for the Crown;

Glen Orris, Q.C., and Douglas Andrews, Q.C., for the respondent.

This application was heard on November 4, 2002, by Bayda, C.J.S., Tallis and Cameron, JJ.A., of the Saskatchewan Court of Appeal. The following decision was released by the court on January 24, 2003.