2011 NBCA 18, 2011 NBCA 18

COURT OF APPEAL OF NEW BRUNSWICK 166-10-CA DAVID MARK BLACK APPELLANT DAVID MARK BLACK APPELANT - and - - et - HER MAJESTY THE QUEEN RESPONDENT SA MAJESTÉ LA REINE INTIMÉE Black v. R., 2011 NBCA 18 Black c.

R., 2011 NBCA 18 CORAM: The Honourable Chief Justice Drapeau The Honourable Justice Richard The Honourable Justice Bell CORAM : L’honorable juge en chef Drapeau L’honorable juge Richard L’honorable juge Bell Appeal from a decision of the Court of Queen’s Bench: November 30, 2010 Appel d’une décision de la Cour du Banc de la Reine : Le 30 novembre 2010 History of case: Decision under appeal: Unreported Preliminary or incidental proceedings: Court of Appeal 2010 NBCA 36 Supreme Court of Canada 2010 S.C.C.A.

No. 325 (QL) Historique de la cause : Décision frappée d’appel : Inédite Procédures préliminaires ou accessoires : Cour d’appel 2010 NBCA 36 Cour suprême du Canada 2010 C.S.C.R. n o 325 (QL) Motion heard : February 8, 2011 Motion entendue : Le 8 février 2011

Decision on motion rendered: March 10, 2011 Décision sur la motion rendue : Le 10 mars 2011 Counsel at hearing: For the appellant: David Mark Black appeared in person For the respondent: Bernard S. Roux Avocats à l’audience : Pour l’appelant : David Mark Black a comparu en personne Pour l’intimée : Bernard S. Roux THE COURT The Attorney General’s motion is allowed and the Notice of Appeal is quashed. LA COUR La motion du Procureur général est accueillie et l’avis d’appel est annulé.

The following is the judgment delivered by THE COURT [1] David Mark Black was convicted of conspiracy to produce marijuana, conspiracy to traffic marijuana and three firearms offences. His appeal against conviction was dismissed ( 2010 NBCA 36 , 360 N.B.R. (2d) 132 ), as was his application for leave to the Supreme Court of Canada ([2010] S.C.C.A. No. 325 (QL)). Subsequent to this, Mr. Black applied to the Court of Queen’s Bench for an extraordinary remedy in the form of certiorari to have his conviction quashed on the grounds the Provincial Court had lost jurisdiction to try him.

The ground that formed the basis of his application is one that had been specifically raised in his previous appeal against conviction and dismissed by this Court. [2] On November 30, 2010, a judge of the Court of Queen’s Bench dismissed Mr. Black’s application, ruling he had no jurisdiction in the matter since it was res judicata . Mr. Black filed a notice of appeal and seeks to have the matter returned to the Court of Queen’s Bench for determination on the merits. By motion, the Attorney General of Canada applies to have Mr.

Black’s notice of appeal quashed. [3] The Attorney General’s motion is allowed for two closely

connected reasons. First, s. 776(

a) of the Criminal Code expressly states that “[n]o conviction or order shall be removed by certiorari […] where an appeal was taken […]”. In this case, Mr. Black pursued his contention that the Provincial Court had lost jurisdiction by way of appeal. As a result, he could not pursue it by way of certiorari . Second, Mr. Black seeks to appeal the application judge’s decision via s. 784(1), which permits an appeal “from a decision granting or refusing the relief sought in proceedings by way of mandamus , certiorari or prohibition.” However, s. 784(1) has no application in this case because

Part XXVI of the Criminal Code “applies to proceedings in criminal matters by way of certiorari , habeas corpus , mandamus , procedendo and prohibition” (s. 774)(emphasis added). Whatever the nature of Mr. Black’s application to the Court of Queen’s Bench, it certainly does not qualify as a proceeding in a criminal matter by way of certiorari as contemplated in s. 774, because there is simply no authority in the Criminal Code for such a proceeding under

Part XXVI after an appeal has been decided and the matter brought to a final conclusion. [4] Since

Part XXVI does not apply, Mr. Black can have no recourse to this Court under s. 784(1). It therefore follows we must allow the Attorney General’s motion and quash the notice of appeal. ___________________________________ J. ERNEST DRAPEAU, CHIEF JUSTICE OF NEW BRUNSWICK ___________________________________ J.C. MARC RICHARD, J.A. ___________________________________ B. RICHARD BELL, J.A.