R. v. Martin, 2016 NSCA 65

Nova Scotia Court of Appeal Citation: R. v. Martin , 2016 NSCA 65 Date: 20160907 Docket: CAC 437121 Registry: Halifax Between: Darren Martin Appellant v. Her Majesty the Queen Respondent Judge: Farrar, Hamilton and Bourgeois, JJ.A. Motion Heard: September 6, 2016, in Halifax, Nova Scotia in Chambers Oral Decision: September 6, 2016 Held: Motion dismissed Counsel: Appellant, in person M. Shaun O’Leary, for the respondent By the Court (Orally): [ 1 ] The appellant was charged with a number of offences under the Income Tax Act and the Excise Tax Act . A voir dire was held before Judge Del W.

Atwood to determine the admissibility of evidence from a CRA audit in June 2013. [ 2 ] In a decision dated September 25, 2013 (reported 2013 NSPC 21 ), Judge Atwood excluded evidence relating to the CRA audit which led to the appellant being acquitted of all charges. [ 3 ] The Crown appealed and Justice Elizabeth Van den Eynden, sitting as a

Summary Conviction Appeal Court, overturned Judge Atwood’s decision to exclude the evidence and ordered a new trial. [ 4 ] Prior to the matter going to a voir dire the appellant brought a number of disclosure applications all of which were denied in decisions dated December 2012 and March 2013. [ 5 ] The appellant appeals Justice Van den Eynden’s decision arguing she erred in overturning the decision of Judge Atwood. [ 6 ] Before this Court, the appellant seeks disclosure of some 21 items pursuant to s. 683(1) (

a) of the Criminal Code which provides: 683

(1) For the purposes of an appeal under this Part, the court of appeal may, where it considers it in the interests of justice, (

a) order the production of any writing, exhibit or other thing connected with the proceedings;

[ 7 ] The appellant says that if his Motion is granted he will seek to introduce the items as fresh evidence on his appeal proper. He argues that the evidence will conclusively show the

Summary Conviction Appeal Court erred in overturning the decision of Judge Atwood. [ 8 ] We are unanimously of the view the Motion should be dismissed. Mr. Martin has not satisfied us that it is in the interest of justice that we order production of these materials. To the contrary, most if not all of the requests were subject to disclosure applications before the provincial court and refused. The decisions to refuse disclosure have not been appealed. Further, the issue on the appeal proper is relatively narrow and it is not necessary to order production of the material to decide the appeal. [ 9 ] Finally, if Mr.

Martin is unsuccessful on his appeal, a new trial will take place and he can then make whatever motions for production he considers appropriate before the trial judge. [ 10 ] The Motion is dismissed. Farrar, J.A. Hamilton, J.A. Bourgeois, J.A.