R. v. Doncaster, 2013 NSCA 46

Nova Scotia Court of Appeal Citation: R. v. Doncaster , 2013 NSCA 46 Date: 20130417 Docket: CAC 408973 Registry: Halifax Between: Ralph Ivan Doncaster Appellant v. Her Majesty the Queen Respondent Judges: MacDonald, C.J.N.S; Saunders and Bryson, JJ.A. Appeal Heard: April 9, 2013, in Halifax, Nova Scotia Held: Appeal dismissed, per reasons for judgment of the Court Counsel: Ralph Doncaster, Appellant in Person James A. Gumpert, Q.C., for the Respondent By the Court: [ 1 ] On October 4, 2012, Mr. Doncaster applied before The Honourable Justice John Murphy for review of a Provincial Court recognizance.

Justice Murphy dismissed the application. [ 2 ] On October 11, 2012, Mr. Doncaster filed a notice seeking to set a date for a second application to review the recognizance. The notice indicates that Mr. Doncaster will argue that “… the Honourable Justice Murphy made a reversible error when reviewing the recognizance”. The matter came on for hearing in Truro on October 16, 2012 before The Honourable Justice N. M. Scaravelli, who dismissed Mr. Doncaster’s application. [ 3 ] In his Notice of Appeal, Mr. Doncaster says he is bringing the appeal pursuant to s. 839(1) of the Criminal Code which provides in part: 839 .

(1) Subject to subsection (1.1), an appeal to the court of appeal as defined in

section 673 may, with leave of that court or a judge thereof, be taken on any ground that involves a question of law alone, against (

a) a decision of a court in respect of an appeal under

section 822; or (

b) a decision of an appeal court under

section 834, except where that court is the court of appeal. [ 4 ] The Crown objects to the appeal and argues that this Court has no jurisdiction to entertain it. As the Crown puts it in its factum: 27. Section 839(1) requires leave to be granted for an appeal on a question of law alone against a decision of a court in respect of an appeal under s.822 or a decision of an appeal court under s.834. 28. A decision under s.822 involves an appeal launched under s.813.

Section 813 permits an appeal from a conviction or order.

Section

813 is not an application to a Supreme Court Justice for a bail review under s.520. 29. A decision under s.834 involves an appeal launched under s.830.

Section 830 is the successor to the old stated case appeal provisions.

Section 830 permits an appeal from conviction, judgment or other final order of a

summary conviction appeal court. It is not an application for a bail review under s.520. 30. The Appellant’s application to Justice Scaravelli was made under

Section 520, not Sections 813, 822, 830 or 834. 31. The Appellant therefore has no recourse to appeal Justice Scaravelli’s decision under s.839(1) to this Court. We agree with those submissions. As framed in the circumstances of this case, we have no jurisdiction to consider Mr. Doncaster’s appeal. [ 5 ] This Court’s inability to entertain Mr. Doncaster’s appeal as cast does not foreclose his rights.

Section 520 of the Code permits a further review after the expiry of 30 days from the previous application: 520 .

(1) If a justice, or a judge of the Nunavut Court of Justice, makes an order under subsection 515(2), (5), (6), (7), (8) or (12) or makes or vacates any order under paragraph 523(2)(b), the accused may, at any time before the trial of the charge, apply to a judge for a review of the order. …

(7) On the hearing of an application under this section, the judge may consider (

a) the transcript, if any, of the proceedings heard by the justice and by any judge who previously reviewed the order made by the justice, (

b) the exhibits, if any, filed in the proceedings before the justice, and (

c) such additional evidence or exhibits as may be tendered by the accused or the prosecutor, and shall either (

d) dismiss the application, or (

e) if the accused shows cause, allow the application, vacate the order previously made by the justice and make any other order provided for in

section 515 that he considers is warranted.

(8) Where an application under this

section or

section 521 has been heard, a further or other application under this

section or

section 521 shall not be made with respect to that same accused, except with leave of a judge, prior to the expiration of thirty days from the date of the decision of the judge who heard the previous application. [ 6 ] Accordingly unless he applies for leave under s. 520(8), an applicant cannot file and a Prothonotary should not accept any document initiating an application for review until 30 days has expired from the time of the previous application. Mr. Doncaster did not wait 30 days in this case. [ 7 ] There are sound policy reasons behind such a statutorily mandated waiting period.

It curtails judge shopping. It prevents deliberate and precipitous motions meant to clog the system. It provides a reasonable period of time between reviews so that the reviewing court will have a basis upon which it can decide whether the circumstances since the last order have changed or whether there are other sound reasons to vary the terms and conditions of bail. [ 8 ] Mr. Doncaster interpreted Justice Scaravelli’s decision as prohibiting any further review once a Supreme Court Justice had heard his initial application. But Justice Scaravelli’s decision was made in the context of Crown submissions that Mr.

Doncaster’s motion was made within 30 days of Justice Murphy’s decision and was therefore premature. We do not take Justice Scaravelli’s decision to mean that a subsequent review of the Provincial Court order may not include consideration of any previous review by a Supreme Court Justice, which s. 520(7)(

a) and (

c) of the Code clearly contemplates. [ 9 ] The appeal is dismissed. MacDonald, C.J.N.S. Saunders, J.A.

Bryson, J.A. NOVA SCOTIA COURT OF APPEAL Cite as: R. v. Doncaster, 2013 NSCA 46 Date: 20130417 Docket: CAC 408973 Registry: Halifax Between: Ralph Ivan Doncaster Appellant v. Her Majesty the Queen Respondent JUDGE : By the Court APPEAL HEARD : April 9, 3013 SUBJECT : Criminal Law, procedure, s. 520 of the Criminal Code , review of recognizance.

SUMMARY : On October 4, 2012, Mr. Doncaster applied for review of a Provincial Court recognizance under s. 520 of the Criminal Code . His application was dismissed. Within days, he commenced a second application for review. That application was dismissed. He appealed under s. 839 of the Code , alleging that the second judge erred in finding he could not review the first reviewing judge’s decision. Crown objected that the Court of Appeal lacked jurisdiction to hear the appeal. ISSUE: Does the Court of Appeal have jurisdiction to consider the appeal? RESULT : Appeal dismissed. The appeal as framed by Mr.

Doncaster under s. 839 does not give this court jurisdiction, since s. 839 requires leave on a question of law against a court’s decision under s. 822 or 836 of the Code . Mr. Doncaster Page 2 appeals from a decision made under s. 520 of the Code . As framed in the circumstances of this case, the Court of Appeal has no jurisdiction to consider the appeal. Mr. Doncaster is free to apply to the Supreme Court for further review under s. 520, following expiry of 30 days from any previous application.

This information sheet does not form part of the court’s judgment. Quotes must be from the judgment, not this cover sheet. The full court judgment consists of 4 pages.