R. v. Doncaster, 2013 NSSC 227

SUPREME COURT OF NOVA SCOTIA Citation: R. v. Doncaster , 2013 NSSC 227 Date: 20130515 Docket: CRT-13-413736 Registry: Halifax Between: Her Majesty the Queen Plaintiff v. Ralph Doncaster Defendant Revised Decision: The text of the original decision has been corrected according to the attached erratum dated July 12, 2013. Judge: The Honourable Justice Arthur LeBlanc Heard: April 16, 2013 in Truro, Nova Scotia Oral Decision: May 15, 2013 Written Decision: July 12, 2013 Counsel: Mr. Arthur Theuerkauf, Q.C., Crown counsel Mr.

Ralph Doncaster, self-represented By the Court : [ 1 ] I reserved on an application to vary a recognizance. The Crown at the hearing raised the question as to whether or not this Court had jurisdiction to entertain an application to vary. [ 2 ] In this proceeding, Mr. Doncaster specified that he is making this application under s. 520 of the Criminal Code . [ 3 ] Provincial Court Judge Zimmer granted bail to Mr. Doncaster and the recognizance contained a list of conditions with which Mr. Doncaster had to comply.

The recognizance covered a total of nine charges, four of which are presently in the course of trial before Provincial Court Judge Curran and Provincial Court Judge Zimmer. Five of the charges (case numbers: 244160, 244161, 244162, 244163, and 244164) are under the Criminal Code . In respect of those latter charges, Mr. Doncaster has elected trial in the Supreme Court. They are scheduled for Preliminary Hearing to be held at a future date. [ 4 ] Mr. Doncaster is seeking a variation of three of the conditions imposed by Judge Zimmer. The variations sought are the

following: 1. Reduce cash bail to $100.00 2. Vary condition (

d) of the Recognizance 3. Remove condition (i). [ 5 ] Trials in respect of the charges of criminal harassment, failing to comply with a condition of an undertaking, and a second charge of failing to comply with a condition of a recognizance or undertaking, are in the process of being tried by two different Provincial Court Judges. [ 6 ] As I mentioned, the Crown has raised an objection to this Court varying the Recognizance because four of the charges are within the jurisdiction of the Provincial Court. Mr.

Doncaster claims that it would be a waste of judicial resources to have two separate applications for variation, namely one in this Court and a second in the Provincial Court. [ 7 ] Neither the Crown, nor Mr. Doncaster, provided me with any case authority to support their respective positions. I have conducted some research and I have not found anything specifically on point. It appears to me that under s. 523(1)(b)(i), the Provincial Court can deal with a variation of a recognizance on matters that are presently before them in the context of a trial.

However, nothing in this provision permits the Provincial Court Judge to deal with charges that Mr. Doncaster has elected to be tried before this Court unless it proceeds by consent. [ 8 ] It is evident that this Court has jurisdiction to deal with variation applications of a recognizance dealing with charges not presently before the Provincial Court and in respect to which Mr. Doncaster has elected to be tried before this Court. However, it is also evident that this Court has no jurisdiction to deal with charges that are presently before the Provincial Court Judges unless the Crown consents.

This is not changed by the fact that all of the charges involve Mr. Doncaster. Neither is it changed by the fact that they are all charged under the Criminal Code , R.S.C. 1985, c. C-46. Furthermore, there does not appear to be any basis for the Provincial Court to deal with the charges that Mr. Doncaster has elected to be tried before this Court. [ 9 ] I have found one decision, however, that deals with the situation where all of the charges would be dealt with in the Provincial Court. This is the decision in R. v. Ibrahim , 2009 ONCJ 385 , [2009] O.J. No 3587 .

In that instance the Provincial Court decided to deal with the variation application even though some of the charges were only pending while other charges were in trial. However, this is not authority for the factual situation I have before me. Therefore, I conclude by saying that the Court has jurisdiction to hear an application for variation but limited to the variation in respect of the charges to which Mr. Doncaster has elected to be tried by this Court. [ 10 ] Therefore, I am prepared to provide a date to Mr.

Doncaster to deal with his variation application only, as I said before, on the charges that I have agree can come before this Court for variation. That date will be September 25, 2013 at 9:30 a.m. [ 11 ] The parties are to submit in writing support of their positions for amendments and any law on the issue of whether the recognizance should be varied. [ 12 ] Mr. Doncaster shall provide his written documents, briefs and authorities by August 30, 2013. The Crown will provide their documents, briefs and authorities by September 13, 2013. If Mr.

Doncaster wishes to reply to the Crown’s position he may do so by September 18, 2013. LeBlanc, J. SUPREME COURT OF NOVA SCOTIA Citation: R. v. Doncaster , 2013 NSSC 227 Date: 20130515 Docket: CRT – 13-413736 Registry: Halifax Between: Her Majesty the Queen Plaintiff v.

Ralph Ivan Doncaster Defendant Revised decision: The text of the original decision has been corrected according to the attached erratum dated July 12, 2013. Judge: The Honourable Justice Arthur LeBlanc Heard: April 16, 2013 in Truro, Nova Scotia Counsel: Mr. Arthur Theuerkauf, Q.C., Crown counsel Mr. Ralph Doncaster, self-represented Erratum : [ 13 ] Paragraph 2 reads: [2] In this proceeding, although Mr. Doncaster did not specify the relevant ground of his application, I will consider it as an application either under s. 520 or s. 523 of the Criminal Code . Paragraph 2 should read: [2] In this proceeding, Mr.

Doncaster specified that he is making this application under s. 520 of the Criminal Code . [ 14 ] Paragraph 3 reads: [3] Provincial Court Judge Zimmer granted bail to Mr. Doncaster containing a list of conditions with which he had to comply. The Recognizance was in reference to a total of nine charges, three of which are presently in the course of trial before Provincial Court Judge Curran and Provincial Court Judge Zimmer. Six of the charges are all charges under the Criminal Code . In respect of these charges, Mr. Doncaster has elected trial in the Supreme Court.

They are scheduled for Preliminary Hearing to be held at a future date. Paragraph 3 should read: [3] Provincial Court Judge Zimmer granted bail to Mr. Doncaster and the recognizance contained a list of conditions with which Mr. Doncaster had to comply. The recognizance covered a total of nine charges, four of which are presently in the course of trial before Provincial Court Judge Curran and Provincial Court Judge Zimmer. Five of the charges (case numbers: 244160, 244161, 244162, 244163, and 244164) are under the Criminal Code . In respect of those latter charges, Mr.

Doncaster has elected trial in the Supreme Court. They are scheduled for Preliminary Hearing to be held at a future date. [ 15 ] The first sentence of paragraph 6 reads: [6] As I mentioned, the Crown has raised an objection to this Court varying the Recognizance because three of the charges are within the jurisdiction of the Provincial Court. The first sentence of paragraph 6 should read: [6] As I mentioned, the Crown has raised an objection to this Court varying the Recognizance because four of the charges are within the jurisdiction of the Provincial Court. The remainder of paragraph 6 should not be replaced.

LeBlanc, J.