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APPEALS - Procedure - Summary conviction appeals

Thursday, May 07, 2020 @ 9:17 AM  

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Appeal by the accused, Kennedy, from a summary conviction appellate judgment. The accused was convicted of two counts of assault and one count of unlawful confinement. One summary conviction appellate judge reserved judgment after hearing arguments and submissions. Prior to rendering a decision, the hearing judge retired. Several months later, a second judge handed down a decision without providing counsel an opportunity to make submissions. The decision affirmed the conviction for unlawful confinement and allowed the appeal against the convictions for assault. The accused sought leave to appeal to the Court of Appeal.

HELD: Leave granted, and appeal allowed. The jurisdiction of a judge to determine a matter was a question of law. The accused had a reasonable possibility of success on the jurisdictional issue, and thus leave to appeal was granted. Under ss. 29, 31 or 32 of the Judicature Act, there was no basis for the judge who issued the decision to have assumed jurisdiction. Under s. 31, the time for the hearing judge to issue a decision had not yet expired. Therefore, there was no basis under s. 32 for the second judge to assume jurisdiction to rehear the matter. No urgent circumstances were apparent that justified assuming jurisdiction pursuant to s. 29 of the Act. To the degree that the second judge had sought to rely upon those provisions, procedural fairness dictated giving notice to the parties with an opportunity to make submissions. The decision was set aside and remitted to the summary conviction appeal court for redetermination.

R. v. Kennedy, [2020] N.J. No. 63, Newfoundland and Labrador Court of Appeal, B.G. Welsh, C.W. White and W.H. Goodridge JJ.A., March 19, 2020. Digest No. TLD-May42020007