ONTARIO COURT OF JUSTICE

Central West Region Brampton, Ontario

B E T W E E N :

THE CITY OF MISSISSAUGA

-and-

LEON SCHWARTZ

REASONS FOR JUDGMENT

Duncan J.

Background

1. The appellant/defendant was charged by certificate of offence with speeding – 74 in a 50 zone – contrary to section 128 of the Highway Traffic Act. He was convicted on May 18, 2011 and appeals pursuant to section 135 of the Provincial Offences Act.

2. The appellant contends that the trial justice erred in failing to grant an adjournment of his trial. It was the third time within three months that the defendant had applied, on the trial date, for an adjournment.

Legal Principles

3. The decision whether to grant an adjournment is within the discretion of the trial court: Darville v the Queen (1956), 116 CCC 113 (SCC). While this Court exercises a very wide scope of appellate review under the POA, R v Gill (2003 OJ No 4761), the exercise of discretion with respect to adjournments is one of those areas where in my view the trial court, intimately familiar with its own dockets, practice and procedure, should be accorded deference. Unless it appears that the decision was not exercised in a judicial way or was plainly unreasonable, it ought not to be disturbed on appeal.

Chronological Events

4. The relevant events are set out here in chronological order:

November 9, 2010 – Defendant is charged by certificate of offence with speeding

November 24, 2010 – Defendant gives Notice of Intention to Appear to plead not guilty and have a trial

November 29, 2010 – Notice of Trial for March 4, 2011 sent to the defendant

March 4, 2011 – The defendant does not appear for his trial before His Worship Justice McKeough. One David Mandel appears and says he is an old friend of the family; he was called by the defendant's wife to come to court and ask for an adjournment. He does not know why the defendant cannot be there since he was woken up and groggy when the wife called him. The Court wants to know the reason why the defendant is not there. Mr Mandel seems offended that the court is asking for a reason. At this point Mr Mandel said: "He's sick. He's sick. He's not feeling well. I mean if the court wants a reason, that's the reason." The Court tells him he should not be making things up. Ultimately the Court reluctantly grants an adjournment to March 9, 2011 for trial and directs that it be peremptory. Mr Mandel asks for a later date but does not give any reason or press the point.

March 9, 2011 – Again the defendant does not appear for trial, this time before His Worship Justice Hudson. Mr Mandel asks for an adjournment explaining that the defendant had business meetings that he could not reschedule. The Court notes that the matter had been set peremptorily, that the Crown witness was present and the defendant gave no contact number for Mr Mandel to reach him. The adjournment request is refused. An ex parte trial ensues and the defendant is convicted.

March 25, 2011 – The defendant brings an application to reopen the conviction pursuant to s 11 POA.[1] The defendant swears an affidavit asserting that the reason for his non-attendance on March 9 was "I was ill". No mention is made of business meetings. The application is allowed and a new trial date is set for May 18, 2011, again to be peremptory. The defendant is personally given notice of trial for that date.[2]

May 18, 2011 – The defendant again does not appear for trial before Her Worship Justice Huston. Mr Mandel appears and applies for an adjournment of the trial on the ground that the defendant cannot be present because he must care for his wife who has had recent surgery. A Motion to adjourn had been filed a week earlier, May 12, signed by the defendant. No affidavit or doctor's letter accompanied the Motion or was presented to the Court. When initially asked his name by the Court, Mr Mandel answered "My Hebrew name is Yehuda, here they call me David". Some discussion ensued as to the history of the case and some question was raised as to whether the matter was scheduled for trial that day, though ultimately it was determined that it was set for trial as per the Notice of Trial. During the discussions the Crown and the Court commented on Mr Mandel's "flippancy" and disrespectful attitude. The Court noted the history of the matter and denied the motion for adjournment. A conviction ensued pursuant to section 9.1 – deemed not to dispute when the defendant does not attend.[3]

Court's Analysis

5. On the basis of the material before her, or lack thereof, and having regard to the history of the proceedings, in my view the learned trial Justice was fully entitled to deny the defendant's motion to once again adjourn the trial, which had been set for a second time on a peremptory basis. The defendant and/or Mr Mandel must have been aware that in order to obtain a third adjournment of the trial they would be obliged to present a compelling case to do so. Yet they presented no evidence in the form of a doctor's letter or affidavit from the defendant swearing to the wife's condition or substantiating the contention that she needed care and that no one else was available to provide it. The Motion was prepared a week earlier so there would have been ample time to obtain and provide such evidence. Instead Mr Mandel presented himself with an air of flippancy and an attitude of entitlement.

Fresh Evidence on Appeal

6. On June 9, 2011, the defendant filed a Notice of Appeal. He attached to it his summary of the proceedings, the reasons for his non-appearances and, to some extent, his argument. Among other things he added to what had previously been presented to the court - that he had been ill with a pinched nerve in his back on the first day of adjournment, March 4, 2011. He repeated that his absence on March 9 was due to business commitments, the original reason advanced by Mr Mandel on March 9, though as mentioned above, the reason given on the re-opening application for absence on March 9 was that he had been ill. Most significantly he attached a letter dated June 4 from a doctor in respect of his wife's condition, relating to his application to adjourn on May 18. The letter reads:

June 3, 2011

To whom it may concern:

Ms Gail Linda Schwartz is currently under our care. She had right foot surgery on Wednesday May 4, 2011 by Dr. J Lau and has had extensive spinal surgery at Toronto Western Hospital as well.

If you have any questions or concerns please feel free to contact our office.

Yours truly

Dr J Lau

7. As stated above, in seeking to adjourn a trial date for a third time the defendant was obliged to present a compelling case. Even more so on appeal. In my view this additional material is insufficient to satisfy me that the defendant ought to have been granted that adjournment. There is no reason why such a letter could not have been obtained and presented on May 18. Moreover the letter is lacking crucial information as to the extent of the post-surgical disability and need for care, if any. Going back further, to the extent that it is relevant, the defendant provides no elaboration with respect to the "business reasons" that he says necessitated the request for adjournment of March 9 – what sort of business? (the defendant is 75); what specifically was occurring that made it impossible to come to court? why was "illness" rather than business commitments presented to the justice on the re-opening application filed just days later?

Conclusion

8. A defendant has a right to a trial but does not have a right to postpone that trial without limit. After three trial dates had been set and two adjournments effectively granted, the Justice before whom the matter came on May 18 was entitled to insist on the matter proceeding, absent the most compelling circumstances supported by evidence. None was presented. Even on appeal, evidence is vague and insufficient to demonstrate the need for an adjournment.

9. This is a speeding ticket. The defendant has been provided an opportunity commensurate with the gravity of the offence to have his day in court. Greater harm to the administration of justice would be occasioned if this court was to determine and declare that, under the circumstances and on the vague evidence presented, the trial court was obliged to once again adjourn the trial. I am not prepared to make such declaration.

10. The appeal is dismissed.

March 7, 2013

B Duncan J

D Mandel for the Appellant

Counsel for City of Mississauga for the Respondent

Footnotes

[1] Under section 11 POA a re-opening application had to be brought within 15 days of becoming aware of the conviction. The defendant swore in his affidavit that he became aware of the conviction on March 14, though it is difficult to understand why he would not have been aware as of March 9 since Mr Mandel was present in court on that day. If March 9 was the date of awareness his application to re-open would have been out of time.

[2] The use of section 11 reopening procedure appears to have been an error, albeit one favourable to the defendant, in that it only applies to default proceedings under section 9 and 9.1, while the defendant was convicted by ex parte trial procedure.

[3] The propriety of proceeding under this section in these circumstances has not been raised by the appellant.