R. v. Smith

R. v. Smith

Because the accused was not 'being tried' at the time of the application and the Crown withheld consent, the Provincial Court lacked jurisdiction under s.523(2); the proper remedy is to bring the application under s.520 to the Supreme Court.

Citation
2003 NSPC 8
Parties
Crown: Her Majesty the Queen; Accused: Deborah Jean Smith
Court
Nova Scotia Provincial Court
Jurisdiction
Canada
Judgment Date
14 March 2003
Procedural Posture
Criminal Pre Trial Bail Variation (assault With a Weapon; Aggravated Assault) / Application Under S.523(2) to Vary Release Order (pre Trial)
Outcome
Application dismissed for lack of jurisdiction; Provincial Court has no jurisdiction absent Crown consent under s.523(2)(c).
Legal Topics
Section 523(2) Criminal Code, Section 520 Criminal Code, Jurisdiction to Vary Bail, Crown Consent
Source Language
English
Criminal Law Bail and Release Procedural Law Section 523(2) Criminal Code Section 520 Criminal Code Jurisdiction to Vary Bail Crown Consent

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Parties

Her Majesty the Queen

Crown

Deborah Jean Smith

Accused

Procedural Posture

Criminal Pre Trial Bail Variation (assault With a Weapon; Aggravated Assault) / Application Under S.523(2) to Vary Release Order (pre Trial)

Legal Issues

  1. 1 Whether Provincial Court has jurisdiction under s.523(2) when accused has elected trial but is not yet being tried
  2. 2 Proper interpretation of the phrase 'is being tried' in s.523(2)(a)
  3. 3 Whether Crown consent under s.523(2)(c) is required for jurisdiction

Ratio Decidendi

Because the accused was not 'being tried' at the time of the application and the Crown withheld consent, the Provincial Court lacked jurisdiction under s.523(2); the proper remedy is to bring the application under s.520 to the Supreme Court.

Court Disposition

Application dismissed for lack of jurisdiction; Provincial Court has no jurisdiction absent Crown consent under s.523(2)(c).

Orders

  • Application cannot be heard by the Provincial Court for lack of jurisdiction as Crown withheld consent under s.523(2)(c).
  • Accused must bring any application to vary the recognizance under s.520 before a Judge of the Supreme Court of Nova Scotia.