1994 CRSK No. 4647 IN THE SUPREME COURT OF NOVA SCOTIA BETWEEN: JAMES FREDERICK OICKLE and HER MAJESTY THE QUEEN RESPONDENT DECISION ON APPEAL HEARD at Kentville, Nova Scotia before the Honourable Justice Hiram J. Carver; orally on the 8th day of September, 1994, by briefs, the 24th day of October, 1994 DECISION DATE: November 14, 1994 COUNSEL: Mr. R. Andrew Kimball, on behalf of the Appellant Mr. Darrell I. Carmichael, on behalf of the Respondent CARVER, J: This is an Appeal by the appellant, James F. Oickle, from a decision of His Honour Judge Randall, wherein the Trial Judge declared a mistrial and set a new date for trial because the Crown had not disclosed a police record that contained the individual weighing of each set of wheels on the accused tandem axle truck. The offence is under the regulations of the Motor Vehicle Act. GROUNDS OF APPEAL 1. That the Learned Trial Judge erred at the commencement of proceedings upon motion by defence counsel for a stay of proceeding and/or a dismissal of the charge by failing to so order, as a result of non‑disclosure by the Crown, of information crucial to proving of the Crown\'s case. 2. That the Learned Trial Judge erred during the proceedings, upon evidence being called by the Crown, by declaring a mistrial upon motion by defence counsel for certain evidence not to be admitted as a result of non‑disclosure or, in the alternative, that a stay or dismissal be ordered as a result of non‑disclosure of additional information crucial to proving the Crown\'s case not being provided to defence counsel and being relied upon in the evidence of the Crown. That the Learned Trial Judge erred by failing to find that the appellant\'s rights had been violated under Section 11(d) of the Canadian Charter of Rights and Freedoms as a result of non‑disclosure and erred at law by not finding pursuant to Section 24(2) of the Charter of Rights and Freedoms that the appropriate remedy was to order a stay of proceedings or in the alternative not admit the evidence. 3. Such other grounds as may become evident upon reading of the transcript. RELIEF SOUGHT: 1. That the appellant be granted stay of proceedings. ISSUE: Does declaration of mistrial on summary conviction charge constitute an "order' pursuant to Section 813(a)(i) of the Criminal Code, from which the accused can Appeal? During the course of the trial, the Trial Judge declared mistrial 'and set new date for trial to September 27, 1994. Section 813(a) and (b) sets out the rights of Appeal by defendant and by the Crown: Appeal by Defendant, Informant or Attorney General. 813. Except where otherwise provided by law, (a) the defendant in proceedings under this Part may appeal to the appeal court (I) from conviction or order made against him, (ii) against sentence passed on him, or (b) the informant, the Attorney General or his agent in proceedings under this Part may appeal to the appeal court (I) from an order that stays proceedings on an information or dismisses an information, (ii) against sentence passed upon defendant. Defence counsel contends declaration of mistrial is equivalent to an order of the court bringing an end to the trial in this case and, therefore, he has the right of appeal against that order. DISPOSITION: An order under Section 813(a) of the Code must be final order in the sense it brings to an end that particular proceeding. In v. Stone Ltd. (No.2), 34 C.C.C. 2(d) 464, Amup, J. A. stated, at page 471: "I would respectively agree that an "order or determination" must be "final" in the sense that it brings to an end that particular proceeding, before an appeal will lie. But am unable to agree that the order or determination must be final in the sense of "determining the issue raised in the information". This, in my view, is another way of saying that the order sought to be appealed must be in substance an acquittal, which could be pleaded in bar of any later charge, on plea of autrefois acquit. An order quashing an information brings to an end the proceeding which that information began. Such an order is "final" and appealable by stated case." A declaration of a mistrial and the setting down of the information for trial before another judge does not put an end to the proceeding which the information began. It is not a final order as contemplated by Section 813(a)(i) of the Criminal Code. No Appeal, therefore, exists to the appellant. The Appeal is dismissed and the case remitted to the Provincial Court for a new trial on the information still before the court. order no costs against the appellant. J. Bridgewater, N.S.
The appellant appealed a decision of the trial judge declaring a mistrial in his summary offence trial and setting a new date for trial because the Crown had not disclosed a police record.  He argued the judge erred by not ordering a stay of proceedings and/or a dismissal at the beginning of the trial, and by failing to find the non-disclosure violated his rights under s. 11(d) of the Charter. He sought a stay of proceedings in this action. Dismissing the appeal, that a declaration is not an 'order' under s. 813(a)(i) of the Code in that it does not bring a final end to the matter. It is therefore not appealable.