R. v. Kell

R. v. Kell

Where an accused has been arraigned and has entered a plea (here, not guilty) and the matters proceed in Provincial Court, the accused is 'being tried' for purposes of s.523(2)(a); consequently the Provincial Court has jurisdiction to consider and vary interim release conditions without prosecutor consent.

Citation
2004 NSPC 54
Parties
Prosecution: Her Majesty the Queen; Accused: Gerald Charles Kell
Court
Nova Scotia Provincial Court
Jurisdiction
Canada
Judgment Date
26 August 2004
Procedural Posture
Criminal Summary Conviction Matters / Post Show Cause and Post Plea; Application to Vary Release Conditions (judicial Interim Release) With Trial Scheduled
Outcome
Court held it has jurisdiction under s.523(2)(a) to hear application to vary release conditions without Crown consent; reserved determination on variation pending further evidence and submissions.
Legal Topics
Judicial Interim Release, Interpretation of S.523(2) Criminal Code, Jurisdiction to Vary Release Conditions, Prosecutor Consent Requirement
Source Language
English
Criminal Law Bail and Release Procedure Judicial Interim Release Interpretation of S.523(2) Criminal Code Jurisdiction to Vary Release Conditions Prosecutor Consent Requirement

Case Brief

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Parties

Her Majesty the Queen

Prosecution

Gerald Charles Kell

Accused

Procedural Posture

Criminal Summary Conviction Matters / Post Show Cause and Post Plea; Application to Vary Release Conditions (judicial Interim Release) With Trial Scheduled

Legal Issues

  1. 1 Whether the Provincial Court has jurisdiction under s.523(2)(a) to vary interim release conditions without prosecutor consent
  2. 2 Whether the accused is 'being tried' for the purposes of s.523(2) and at what procedural stage that status begins
  3. 3 Whether s.523(2)(c)(iii) applies requiring Crown consent

Ratio Decidendi

Where an accused has been arraigned and has entered a plea (here, not guilty) and the matters proceed in Provincial Court, the accused is 'being tried' for purposes of s.523(2)(a); consequently the Provincial Court has jurisdiction to consider and vary interim release conditions without prosecutor consent.

Court Disposition

Court held it has jurisdiction under s.523(2)(a) to hear application to vary release conditions without Crown consent; reserved determination on variation pending further evidence and submissions.

Orders

  • Court to set a further date to hear evidence and submissions on the requested variation of release conditions