R. v. Kennedy, 2020 NLCA 11

Nicholas Kennedy (appellant) v. Her Majesty the Queen (respondent) (19/65) Indexed As: R. v. Kennedy 2020 NLCA 11 5 C.A.N.L.R. 388 Court of Appeal of Newfoundland and Labrador Welsh, White and Goodridge JJ.A. March 18, 2020

Summary: Nicholas Kennedy was convicted of one count of unlawful confinement and two counts of assault. He appealed the convictions to the

summary conviction appeal court. The

summary conviction appeal judge dismissed the appeal against the conviction for unlawful confinement but allowed the appeal against the convictions for assault. Mr. Kennedy applied for leave to appeal the decision of the

summary conviction appeal court, primarily due to the fact that Boone J. was not the same

summary conviction appeal judge who heard the argument and submissions of counsel. Held: Appeal allowed. Welsh J.A. (White and Goodridge JJ.A. concurring): Leave to appeal was granted. The grounds of appeal involved a question of law and there was a reasonable possibility of success on appeal (paragraphs 5-6). The Judicature Act allows for a retired judge (Peddle J.) to give a decision within six months after retirement. Peddle J.’s window for filing a decision had not expired when Boone J. rendered a decision.

In the circumstances, Boone J. was without jurisdiction to render a decision on the appeal (paragraphs 7-12). Cases cited: Newfoundland Recycling Ltd. v. Newfoundland and Labrador (Attorney General) , 2009 NLCA 28 , 284 Nfld. & P.E.I.R. 153 Statutes considered: Criminal Code ,

section 839 Judicature Act , RSNL 1990, c. J-4, sections 29 , 31 , 32 Counsel: Philip Whalen, for the appellant; Sheldon Steeves, for the respondent. The appeal was heard and decision rendered orally on March 18, 2020 by Welsh, White and Goodridge JJ.A. The following judgment was filed on March 19, 2020 by Welsh J.A. for the Court.

______________________________________________________________ Welsh J.A.: [ 1 ] Nicholas Kennedy was convicted of one count of unlawful confinement and two counts of common assault, contrary to provisions of the Criminal Code . A

summary conviction appeal judge dismissed Mr. Kennedy’s appeal against the unlawful confinement conviction, but allowed the appeal against the convictions for assault. The appeal to this Court centres on the fact that one

summary conviction appeal judge heard the arguments and submissions of counsel while a different judge rendered the decision. Leave to appeal is required under the Criminal Code for an appeal to this Court from a

summary conviction appeal. [ 2 ] At the hearing, leave to appeal was granted, the appeal was allowed and Mr. Kennedy’s appeal against his convictions for assault and unlawful confinement were remitted to the

summary conviction appeal court for determination. Following are the reasons. BACKGROUND [ 3 ] Sitting as a

summary conviction appeal judge, Peddle J. heard argument and submissions from counsel on June 29 and September 25, 2018. He reserved, but did not render his decision before he retired on January 31, 2019. On July 16, 2019, Boone J., without explanation and without providing counsel with an opportunity to make submissions, handed down a decision. ISSUE [ 4 ] At issue is whether Boone J. had jurisdiction to render the decision on the

summary conviction appeal. ANALYSIS Leave to Appeal [ 5 ] Leave to appeal is required where a decision of a

summary conviction appeal court is at issue (

section 839 of the Criminal Code ). The applicable test is set out in Newfoundland Recycling Ltd. v. Newfoundland and Labrador (Attorney General) , 2009 NLCA 28 , 284 Nfld. & P.E.I.R. 153 : [9] Thus, to obtain leave to appeal pursuant to s. 839(1): (

a) the appeal must “be taken on a ground that involves a question of law alone”, and (

b) the ground(

s) of appeal must be such that: (

i) either the ground of appeal has a “reasonable possibility of success”, or (ii) “the proposed question of law [has significance] to the administration of justice”. [ 6 ] Leave to appeal was granted at the hearing on the basis that these requirements were satisfied; that is, the jurisdiction of a judge to decide a matter is a question of law, and there was a reasonable possibility of success on that ground. Jurisdiction of Boone J. The Law [ 7 ] Section 31(1) of the Judicature Act, RSNL 1990, c.

J-4 , provides for a judge to enter judgment on a reserved matter within six months after retirement: When a judge has reserved a decision in a proceeding and retires, ... that judge may, within 6 months after retirement, ... give his or her decision as if that judge were still a judge. [ 8 ] Section 32(1) of the Judicature Act addresses rehearing of a matter where a judge has retired: Where a judge who has reserved a decision in a proceeding ... (

b) retires, ... without having given the decision within the time set out in

section 31; or ... a judge may upon application order that the proceeding be retried or reheard by another judge. [ 9 ] Section 29(1) of the Judicature Act provides for substitution of a judge in the case of urgency: Where ... the office [of a judge] has become vacant, or where there is some other cause, and it is urgent to do so, another judge may sit for that judge to hear or dispose of a proceeding heard in part by that judge.

Application of the Law [ 10 ] Peddle J., sitting as a

summary conviction appeal judge, having heard argument and submissions of counsel in June and September 2018, retired on January 31, 2019. Pursuant to

section 31 of the Judicature Act , he had jurisdiction to file a decision within six months, that is, not later than July 31, 2019. However, Boone J. filed a decision on July 16, 2019, before the time available to Peddle J. had expired.

Section 32 of the Act provides for another judge to rehear a

summary conviction appeal if a retired judge has not rendered a decision “within the time limit set out in

section 31 ”, in this case, July 31, 2019. The necessary condition precedent not having been established, Boone J. could not rely on

section 31 for jurisdiction to proceed in Peddle J.’s place. [ 11 ] Further, with respect to

section 29 of the Act , Boone J. gave no reason that would satisfy the requirement that it be “urgent” to dispose of the matter. Peddle J.’s window for filing a decision had not expired. It may be inferred that a delay of six months, without more, would not satisfy the need for urgency. [ 12 ] In the result, there was no basis in sections 29, 31 or 32 of the Act on which Boone J. could rely to assume jurisdiction to decide the

summary conviction appeal. Further, if a judge intends to rely on one of those provisions, notice should be given to the parties together with the reason the court is proceeding with a different judge. Consistent with procedural fairness, the parties should have the opportunity to address the Court and make submissions if they so choose.

SUMMARY AND DISPOSITION [ 13 ] In the circumstances, Boone J. was without jurisdiction to render a decision in the

summary conviction appeal that had been heard by Peddle J. [ 14 ] In the result, at the hearing, the Court granted leave to appeal, allowed the appeal, set aside the decision of Boone J., and remitted Mr. Kennedy’s appeal against his convictions for assault and unlawful confinement to the

summary conviction appeal court for determination. Appeal allowed.