nan Date:19991108 C.A.C. 150706 NOVA SCOTIA COURT OF APPEAL [Cite as: R. v. Wood, 1999 NSCA 134] BETWEEN: JOHN DOUGLAS WOOD Appellant in person and HER MAJESTY THE QUEEN Kenneth W.F. Fiske, Q.C. for the Respondent/Applicant Respondent/ Applicant Application heard: November 2, 1999 nan Decision delivered: November 8, 1999 nan BEFORE THE HONOURABLE CHIEF JUSTICE GLUBE, IN CHAMBERS GLUBE, C.J.N.S.: (In Chambers) [1] Following an application for release pending appeal pursuant to section 679(1) of the Criminal Code, Justice Cromwell issued a written decision on October 19, 1999, granting the release with conditions, pending Mr. Wood’s appeal scheduled to be heard January 26, 2000. The original order is dated October 20, 1999 and an amended order changing several of the conditions is dated October 26, 1999. On the same date as the amended order, the Crown applied for a review under s. 680(1) of the Code. s. 680. (1) decision made by judge under section ... 679 may, on the direction of the Chief Justice ... of the court of appeal, be reviewed by that court and that court may, if it does not confirm the decision, (a) vary the decision; or (b) substitute such other decision as, in its opinion, should have been made. In the commentary following s. 680, it states in part: ... The procedure involves two steps. An application is made to the chief justice or acting chief justice of the court of appeal for direction that the decision be reviewed by the court of appeal. If the direction is refused, no review will be held.... [Tremeear’s Criminal Code, The 2000 Annotated, p. 1002.] [2] Counsel for the Crown relies upon his submission to Justice Cromwell that Mr. Wood, who was on day parole at the time of his 679(1) application, was not in custody, therefore, Justice Cromwell misinterpreted the definition of custody by granting the 679 application. He submits this is case of “first impression,” raising issues which should be considered by panel of the Court and says if review is ordered, he would raise the following grounds: 1. Whether the Chambers Judge erred in law in ruling the appellant, at the time the application under s. 679 of the Criminal Code was made, was “in custody” within the meaning of s. 679 of the Code. 2. Whether the Chambers Judge erred in law in ruling the Court had jurisdiction to hear the appellant’s application for judicial interim release under s. 679 of the Criminal Code when the appellant at the time of the application was on release from the federal penitentiary on day parole granted by the National Parole Board under Part ll of the Corrections and Conditional Release Act. [3] Counsel for the Crown was asked to determine whether any other case law was available in addition to that cited in Justice Cromwell’s decision. Both Crown counsel, who was given additional time, and Mr. Wood, who is representing himself, claimed they could not find any other cases on this issue. [4] The hearing of this appeal is scheduled for January 26, 2000. Although it has no bearing on this decision, the appeal has been rescheduled several times due to delay in obtaining the transcript for the appeal book. Had the hearing gone ahead as initially scheduled, the issue of whether or not person on day parole is in custody would never have arisen as at the time, Mr. Wood was serving his time in custody in penitentiary. [5] After reviewing the decision of Justice Cromwell and without any new precedents being provided by the Crown following an opportunity to do so, and on the facts of this case, find should not exercise my discretion to give direction for review. [6] Based on the cases cited in the decision of Justice Cromwell, in my opinion, day parole with a requirement to return to a halfway house each night is a form of custody which then allows for an application and release under s. 679 of the Code. [7] am unable to conclude that the Court of Appeal would come to any other conclusion. The application for direction that the decision of October 19, 1999 be reviewed is refused. Glube, C.J.N.S.
The appellant was granted release pending appeal, on conditions. The Crown applied for a review. The Crown contended that the Chambers judge misinterpreted the definition of custody in granting the application, as the appellant was on day parole at the time of the application. Dismissing the application, that day parole with a requirement to return to a halfway house each night is a form of custody which allows for an application and release under s. 679 of the Code.