Bird v. Nova Scotia (Attorney General)

Bird v. Nova Scotia (Attorney General) Court Supreme Court Date 2007-01-25 Citation 2007 NSSC 45 Docket SH 275293 Judge/Registrar/Adjudicator Wright, Robert W. (Honourable Justice) (SC) Document Type Decision Relations Library Sheet - Bird v. Nova Scotia (Attorney General) - 2007 NSSC 45 - 2007-01-25 - Library Sheet Decision Content IN THE SUPREME COURT OF NOVA SCOTIA Citation: Bird v. Nova Scotia (Attorney General), 2007 NSSC 45 Date: 20070125 Docket: S.H. No. 275293 Registry: Halifax Between: William Bird Plaintiff -and- The Attorney General for the Province of Nova Scotia Defendant Decision Judge: The Honourable Justice Robert W. Wright Heard: January 25, 2007 in Halifax, Nova Scotia Oral Decision: January 25, 2007 Written Decision: February 19, 2007 Counsel: Counsel for the Plaintiff - Donald C. Murray, Q.C. Counsel for the Defendant - Catherine Cogswell Wright J. (Orally) [1] This is an application for orders in the nature of certiorari and mandamus quashing the decision of Provincial Court Judge Alanna Murphy dated September 11, 2006 declining to sentence William Bird at that time for offences to which he plead guilty on January 23, 2006 and further directing that he be sentenced forthwith in accordance with s.720 of the Criminal Code. [2] The procedural background is not in dispute and I can recite it most efficiently by paraphrasing the Crown’s brief in that regard. On January 23, 2006 the accused re-elected to be tried in Provincial Court and plead guilty to four counts in the Information; namely, sexual assault with a weapon contrary to s. 272(2)(b), forcible entry on the real property of the victim contrary to s.72(1), possession of a weapon for a purpose dangerous to the public peace contrary to s. 88(1) and breach of a condition contrary to s.811. [3] At that time, Crown counsel noted on the record that it would be making an application to have Mr. Bird declared a dangerous offender. The accused was then remanded to the Forensic Unit of the Central Nova Correctional Facilty for 60 days for the purposes of preparing an assessment under s. 752.1(1) of the Code. [4] The matter of setting a date for the Dangerous Offender hearing was adjourned, on three occasions, to April 13, 2006 at which time the accused consented to a further 60 day remand to the East Coast Forensic Unit for the purposes of an assessment. The Correctional Services Canada file which was not available for the original assessment was then available. The tentative dates of October 6, 11 and 13, 2006, were set aside for the Dangerous Offender hearing. On April 28, 2006 the matter was adjourned to June 28, 2006 to confirm hearing dates. On the latter date, the matter was once again adjourned to July 27, 2006 to confirm hearing dates. [5] On July 27, 2006, defence counsel gave notice that he would be applying to the court to have Mr. Bird sentenced to a determinate sentence prior to the Dangerous Offender hearing. At that time, Crown counsel noted that more than the three days allotted would be required for such a hearing. The court then set down Mr. Murray’s application for September 11, 2006. [6] It should be noted as well that Mr. Murray first appeared on the record as counsel for Mr. Bird on March 23, 2006 following the unfortunate death of the accused’s prior legal counsel. On all occasions throughout, Mr. Bird has consented to a remand. [7] On September 11, 2006, Mr. Murray made his application before Judge Alanna Murphy in Provincial Court to have Mr. Bird sentenced to a determinate sentence prior to the hearing of the Crown’s application to have Mr. Bird declared a dangerous offender. Judge Murphy denied the application, and it is that decision which is under judicial review in the application now before this court. [8] To complete the recitation of the procedural background, on September 29, 2006 dates were scheduled for the Dangerous Offender hearing from April 30 to May 18, 2007. However, on October 27, 2006, that hearing had to be once again adjourned to July 9-26, 2007 at the request of defence counsel to accommodate his schedule. That adjournment request was consented to by the Crown. [9] After hearing the application on September 11, 2006, Judge Murphy gave a short oral decision, the transcript of which is attached to Mr. Murray’s affidavit. In dismissing the application, it appears that she based her decision on one central factor, which is mentioned in two passages on page 2 of the transcript. The first passage reads as follows: “I have read the briefs that were prepared by counsel and I can say, that while I am sympathetic to the position of the defence in relation to the amount of time that has passed in relation to this matter, I am of the view that it is by no means an absolute right of the Crown once there has been a determinate sentence to proceed with a Dangerous Offender application”. [10] After then briefly reviewing the provisions of s.753(2) of the Code, Judge Murphy concluded and I quote: “Ultimately, it may be decided, if I were to sentence Mr. Bird to a determinate sentence, that the Crown would be precluded, and not on the merits, from having the dangerous hearing application, in relation to Mr. Bird, in relation to these charges”. [11] The main thrust of defence counsel’s argument is that compliance with the provisions of s.720 of the Criminal Code cannot be unreasonably postponed. Section 720 provides that “A court shall, as soon as practicable after an offender has been found guilty, conduct proceedings to determine the appropriate sentence to be imposed”. Mr. Murray argues that in dismissing his application on September 11, 2006, Judge Murphy thereby failed to exercise a jurisdiction that she was required to exercise under s.720 and that the failure to exercise that jurisdiction constitutes a jurisdictional error justifying supervisory intervention by this court. [12] Mr. Murray further submits that where we are dealing with a jurisdictional issue, the matter cannot be considered as being in the nature of an interlocutory appeal which is generally not available in criminal proceedings. He distinguishes this application from attempted supervisory reviews of preliminary inquiry proceedings which most of the reported cases on this subject deal with. [13] The Crown, on the other hand, submits that Mr. Bird’s application is indeed interlocutory in nature and should be dismissed on that basis alone. The Crown’s alternative position is that even if it is not interlocutory in nature, Judge Murphy made no jurisdictional error in her decision; that she appropriately turned her mind to the legal issues, the relevant case law, and the facts before her; and that she exercised her discretion in a fair and proper fashion having particular regard to the concerns that the judge expressed about the interpretation and effect of s.752 of the Code. The Crown also emphasizes that where Mr. Murray’s concern is centred on unreasonable delay, the legal remedy sought would more appropriately be a Charter application under s.11(b), which confers the right upon a person charged with an offence to be tried within a reasonable time (which includes sentencing). The Crown therefore submits that this application ought to be dismissed on any or all of these grounds. [14] I should also mention that the Crown has pointed out that by the time the application before Judge Murphy was heard, five of the six conditions precedent to a Dangerous Offender application had already been satisfied. First, the accused had been convicted of a serious personal injury offence as defined under s.752(a)(b). Secondly, notice of intention to make a Dangerous Offender application was given back on January 23, 2006. Thirdly, a remand for assessment was made. Fourthly, a report of the assessment was filed not later than 15 days after expiration of the remand for assessment. Fifthly, the consent of the Attorney General had been obtained. Thus, the only remaining condition precedent still outstanding was the requirement that notice of the application be served on the accused at least seven days in advance of the hearing and filed with the court. Crown counsel has made representations to this court that the Crown does not intend to wait out the seven day notice period but rather, is going to provide that written notice to defence counsel at a much earlier stage. It is at the moment awaiting a further assessment by Dr. Angela Connors which is in the works and is expected in about two week’s time. [15] I am first going to deal with the issue of whether or not this application should fail by reason of being interlocutory in nature. Counsel haven’t been able to locate or submit any case similar on the facts to this one to assist in that determination. Indeed, this appears to be a novel fact situation to come before the court, where a prerogative writ is being used to require compliance with s.720 of the Criminal Code. [16] Perhaps the case closest to this one that I have been referred to is the decision of Justice Kelly in R. v. McDonald (2002) 203 N.S.R. (2d) 225. Very briefly, the accused in that case was charged with offences under the Fisheries Act, and applied to Provincial Court for the return of his fishing gear prior to completion of the trial. The application was denied by Chief Judge Batiot and the accused then made application to this court for prerogative remedies. The application was dismissed. [17] In his decision, Justice Kelly noted the limited role of prerogative remedies in criminal proceedings. He also observed that most of the case law regarding certiorari in criminal proceedings involves supervisory review of preliminary inquiries and that there appears to be very little case law discussing prerogative remedies in relation to subsequent criminal proceedings, including the trial process itself. Justice Kelly went on to quote from paragraph 19 of R. v. Russell [2001] S.C.J. No. 53, where Chief Justice McLachlin stated: The scope of review on certiorari is very limited. While at certain times in its history the writ of certiorari afforded more extensive review, today certiorari “runs largely to jurisdictional review or surveillance by a superior court of statutory tribunals, the term ‘jurisdiction’ being given its narrow or technical sense”: R. v. Skogman, [1984] 2 S.C.R. 93, at p. 99. Thus, review on certiorari does not permit a reviewing court to overturn a decision of the statutory tribunal merely because that tribunal committed an error of law or reached a conclusion different from that which the reviewing court would have reached. Rather certiorari permits review “only where it is alleged that the tribunal has acted in excess of its assigned statutory jurisdiction or has acted in breach of the principles of natural justice which, by the authorities, is taken to be an excess of jurisdiction”: Skogman, supra, at p. 100 (citing Forsythe v. The Queen, [1980] 2 S.C.R. 268. [18] Justice Kelly then went on to find on the facts before him that while he acknowledged that a superior court has jurisdiction to review final decisions of inferior courts for errors in law on the face of the record, the applicant before him was requesting the remedy of certiorari from a decision that was made prior to the conclusion of the trial. He found that essentially, the applicants were there seeking interlocutory prerogative relief. He went on to say that there is no right to interlocutory appeals in criminal matters. He observed that there was a right of appeal available to the applicants and given that fact, albeit at the conclusion of the proceeding, it follows that supervisory reviews should normally be similarly restricted in interlocutory matters. [19] In the case before me, what we have is a Dangerous Offender hearing scheduled for July of this year which, of course, is a sentencing hearing. Nonetheless, Mr. Murray on behalf of the offender seeks judicial review of the decision of Judge Murphy wherein she declined to order a prior sentencing for the predicate offences to which Mr. Bird plead guilty. This situation is undoubtedly interlocutory in nature. That does not automatically bar this application but having regard to the principles reviewed by Justice Kelly in R.v. McDonald, supra, I would exercise my discretion to refuse the prerogative relief sought. [20] This proceeding is not, of course, an appeal from the decision of Judge Murphy on the merits. Rather, it is a supervisory review for jurisdictional error in an interlocutory matter. The jurisprudence in this area certainly demonstrates that courts are much more reluctant to grant certiorari where that remedy is sought in an interlocutory context. I am not persuaded that it should be granted here on the unique facts of this case. [21] Even if I am wrong in that part of the analysis, more importantly I would dismiss this application on my overriding conclusion that Judge Murphy did not fail to exercise the jurisdiction conferred upon the court under s.720 of the Code. [22] First of all, let me make it perfectly clear that for purposes of this judicial review proceeding here today, it is not necessary for this court to make any ruling or finding on what the proper interpretation and effect of s.753(2) of the Code ought to be. That point was not actually decided by Judge Murphy and need not be decided now for purposes of disposing of this application. Interestingly, defence counsel, after analyzing s.753(2), takes the position that its proper interpretation is that simply proceeding with a prior sentencing on the predicate offences would not prevent the Crown from later proceeding with a Dangerous Offender hearing within the parameters set out in that section. Crown counsel takes a different interpretation. From her analysis, if a prior sentencing of Mr. Bird were to take place for the predicate offences, she considers that the Crown would be estopped from proceeding later on with a Dangerous Offender application. [23] As noted, Judge Murphy in her decision did not make a definitive ruling on the proper interpretation and effect of that section. She did, however, question Mr. Murray’s interpretation by saying that it is by no means an absolute right of the Crown in those circumstances to proceed with a subsequent Dangerous Offender application and that ultimately it may be decided, if she were to sentence Mr. Bird to a determinate sentence, that the Crown would be precluded, and not on the merits, from later having the Dangerous Offender application heard in relation to these charges. [24] In my view, Judge Murphy properly considered this uncertainty over the proper legal interpretation and effect of s.753(2), in the exercise of her discretion to dismiss the defence application. Section 720 speaks in the imperative that the court shall, as soon as practicable, conduct a sentencing hearing but the words “as soon as practicable” likewise confer a discretion on the court as to when the sentencing ought to properly proceed. Here there was no ulterior purpose for delaying the determinate sentencing of Mr. Bird such as was found in other cases referred to by defence counsel. Rather, it is apparent to me from reading the transcript of her decision that she did not want to run the risk of pre-empting the Crown from later bringing a Dangerous Offender application. [25] In my view, that cannot be attacked as a failure to exercise her jurisdiction under s.720 attracting judicial review. She decided that the sentencing should proceed as a Dangerous Offender application in the first instance, which indeed is the usual procedure. In my opinion, she did not apply any wrong principles in exercising her discretion within s.720. Jurisdictional error must be established before certiorari will issue. I find that there has been no jurisdictional error committed justifying intervention by this court. The application is therefore dismissed. J.