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

• Jurisdiction: Nova Scotia
• Judge: Gibson
• Neutral Citation: 2003 NSPC 8
• Court: Provincial Court of Nova Scotia (Canada)
• Date: 10 March 2003
• Citation: 2003 NSPC 8,(2003), 214 N.S.R.(2d) 213 (PC),214 NSR(2d) 213,(2003), 214 NSR(2d) 213 (PC),214 N.S.R.(2d) 213

R. v. Smith (D.J.) (2003), 214 N.S.R.(2d) 213 (PC);

 671 A.P.R. 213

MLB headnote and full text

Temp. Cite: [2003] N.S.R.(2d) TBEd. AP.027

Her Majesty the Queen v. Deborah Jean Smith

(No. 1242117; 1242118; 2003 NSPC 8)

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

Nova Scotia Provincial Court

Gibson, A.C.J.P.C.

March 10, 2003.

Summary:

The accused applied to vary the conditions of her release order.

The Nova Scotia Provincial Court declared itself without jurisdiction to hear the application.

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 assault with a weapon and with aggravated assault - On October 31, 2002, she was released subject to a $5,000 recognizance order - On December 10, 2002, the recognizance was varied on application by the accused pursuant to s. 515.1 of the Criminal Code -On January 22, 2003, the accused elected trial in the Provincial Court and pleaded not guilty - On the same day, the accused gave notice of her application to seek a further variation of the recognizance - The Nova Scotia Provincial Court declared itself without jurisdiction to hear the application where the accused was not being tried as provided by s. 523(2)(a) and the Crown had not given the consent contemplated by s. 523(2)(c).

Words and Phrases

Is being tried - The Nova Scotia Provincial Court discussed the meaning of the expression "is being tried" found in s. 523(2)(a) of the Criminal Code, R.S.C. 1985, c. C-46 - See paragraphs 6 to 9.

Cases Noticed:

R. v. Arkison, [1996] B.C.J. No. 2549, refd to. [para. 7].

R. v. Holt (B.B.) (1999), 186 Sask.R. 316 (Prov. Ct.), refd to. [para. 7].

R. v. Michaud, [2000] S.J. No. 846, refd to. [para. 7].

R. v. Hardiman (C.L.) (2002), 208 N.S.R.(2d) 24; 652 A.P.R. 24 (S.C.), affd. (2003), 211 N.S.R.(2d) 358; 662 A.P.R. 358 (C.A.), consd. [para. 7].

R. v. Patterson (1985), 59 A.R. 163; 19 C.C.C.(3d) 149 (C.A.), consd. [para. 11].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 523(2) [para. 4].

Counsel:

Alonzo Wright, Crown attorney;

Patrick Egan, for the defendant.

Gibson, A.C.J.P.C., of the Nova Scotia Provincial Court heard this application on February 3 and March 10, 2003, and delivered the following oral decision on March 10, 2003, which was released in writing on March 14, 2003.