Court File and Parties
Court File No.: 13-4741 Newmarket Date: 26 August 2014 Ontario Court of Justice
Between: Her Majesty the Queen — and — Francis Omar Eusebio Baez
Trial Adjournment Application
Heard: 26 August 2014 Reasons Delivered: 26 August 2014
KENKEL J.:
Introduction
- The Crown applies for an adjournment of the trial based on the non-attendance of the complainant. The defence submits that the adjournment should be refused.
Trial Adjournment - The Legal Test
When faced with an application for adjournment where a witness is absent, the trial judge must consider:
- whether the absent witness is material to the case;
- whether the party applying for the adjournment has been guilty of any neglect in ensuring that their witness attend the trial;
- whether there is a reasonable expectation that the attendance of the witness could be procured if the trial were adjourned.
Often it will not be possible at the time of the application for the applicant to provide evidence as to a reasonable expectation of future attendance of the witness, or the reason for non-attendance so trial courts have been instructed to permit the party applying for the adjournment time to make reasonable inquiries in that regard. R. v. A.T., [1991] AJ No. 1131 (QB)
In cases involving serious personal injury where the complainant does not attend, courts must permit the Crown to take reasonable steps to ensure that the absence of the complainant was not due to intimidation or fear. R. v. Henry, [1987] OJ No. 947 (CA), R. v. M.V., [2004] Q.J No. 9875 (CA).
Non-attendance of the central complainant often occurs in domestic cases. Given the public interest in cases of alleged domestic abuse, the Crown must be permitted to take reasonable steps to determine the cause of the non-attendance whether or not there's been serious injury. R. v. Khasria, [2013] OJ No. 5040 (SCJ), R. v. Henry. Even evidence of a voluntary absence does not end the matter in the domestic context. "… to suggest that a voluntary absence can defeat the public interest in a trial on the merits in a domestic abuse case, is to send the wrong message about domestic abuse - a message that domestic assaults that are not as serious as others…" R. v. Khasria at para. 64
The defence submits that accumulated delay to this point raises 11(b) concerns and itself provides a reason to refuse an adjournment. This court is not in a position to make any finding on delay to this point other than to observe that there was no 11(b) application at trial. It's not plain that an adjournment in response to the non-attendance of the complainant results in delay attributable to the Crown or to systemic delay, but that is a matter for submissions on another occasion if the adjournment is granted. R. v. Khasria at para. 62
Adjournment Applications – Evidence and Procedure
The Crown began the application by providing oral evidence by way of submissions as to the background of the case. The defence objection to that approach was sustained. Where an adjournment application is contested, it's preferable that the Crown call the officer-in-charge of the case or other witness who can provide evidence relating to the Darville criteria. This provides a proper evidentiary foundation for the application and preserves the right of the defence to cross-examine on those issues.
The Crown called an officer assisting with the case who provided an overview of his own efforts and the efforts of other officers to locate and serve the witness. The defence objection to the hearsay nature of the evidence was overruled. An adjournment application is not a trial and the strict rules of evidence do not apply. The court may receive credible and reliable evidence from a witness including reference to information provided by others. That evidence may be challenged in cross-examination.
Analysis
I infer that the absent witness is a central witness in this case from the fact that she is the complainant on the Information. Although the assisting officer attended the scene, the Crown did not ask him anything about his observations, the alleged offence, the relationship if any between the complainant or the accused or the role of the complainant as witness.
While other Crown witnesses attended trial, the Crown conceded there is no other direct witness to the alleged aggravated assault. That concession was not disputed by the defence. While it would have been helpful to have heard evidence on this point, given the concession and the fact that the absent witness is the complainant, I find she is a witness central to the Crown's case.
The police were not able to serve the subpoena personally but did serve an adult at the complainant's mother's home. They believed she might reside there. The mother is plainly in current direct contact with her daughter as yesterday she told the police her daughter went to the Dominican Republic prior to the trial date. I find that the subpoena served by the police would have brought the trial date to the attention of the witness and that she was aware of the need for her attendance.
The information provided by the mother indicates that the complainant will be returning to Toronto shortly. Police would likely be able to make contact with her upon her return. I find that there is a reasonable prospect that the Crown could procure her attendance if an adjournment were granted.
We don't know whether or not the allegations involve an incident in a domestic relationship, but the alleged injuries are serious and there's a strong public interest in the trial of allegations of aggravated assault on the merits. I find that the Crown should be given the opportunity to determine directly the reasons why the witness left the country prior to the scheduled date for trial and should be given the opportunity to procure her attendance for trial.
Conclusion
- The trial will be adjourned at the request of the Crown. I will hear submissions from counsel as to a reasonable timeframe for Crown inquiries.
Delivered August 26, 2014
Justice Joseph F. Kenkel