Court File and Parties
CITATION: R. v. Blanchard, 2008 ONCA 761
DATE: 20081113
DOCKET: C48073
COURT OF APPEAL FOR ONTARIO
BEFORE: Sharpe, Lang and Epstein JJ.A.
BETWEEN:
Her Majesty the Queen
Respondent
and
Marvin Blanchard
Appellant
COUNSEL:
David E. Harris for the appellant
Craig Harper for the respondent
HEARD: November 7, 2008
On appeal from the judgment of Justice John McIsaac of the Superior Court of Justice dated December 6, 2007.
ENDORSEMENT
[1] We recognize and fully support the power of a trial judge to refuse a last-minute adjournment request to ensure the fair and efficient running of the trial courts.
[2] Regrettably, however, when the appellant first requested an adjournment one week prior to the scheduled trial date, the judge who heard and refused the application made four factual errors, namely:
That on 18 prior appearances, the case had been adjourned at the request of the appellant. It is conceded that there is nothing in the record to support that finding.
That there had been four judicial pre-trials. It is clear that there had been only one judicial pre-trial.
That when the trial date of May 13, 2004 was set on October 30, 2003, it was marked to proceed “with or without counsel”. In fact, it was not so marked until March 16, 2004.
That the appellant had never previously retained counsel. In fact, the appellant had retained counsel but that counsel was then removed from the record on March 16, 2004.
[3] A week later, the appellant renewed his request for an adjournment before the trial judge. She adopted the decision of the motion judge, found that nothing had changed and denied the request.
[4] In our view, the summary conviction appeal judge erred by failing to address the four material factual errors we have identified.
[5] As the refusal of an adjournment to allow the appellant to retain counsel was premised on an erroneous factual foundation, and as the appellant was then forced to proceed with a trial in a proceeding where the Crown made it clear that it sought a custodial term, we are persuaded that the appeal must be allowed, the decision of the summary conviction appeal court judge set aside, the conviction vacated, and a new trial ordered.
[6] As a new trial is ordered, it is unnecessary for us to deal with the other grounds of appeal.
“Robert J. Sharpe J.A.”
“S.E. Lang J.A.”
“G. Epstein J.A.”