ONTARIO COURT OF JUSTICE DATE: 2024 01 25 INFORMATION NUMBER: 23-47103032
BETWEEN:
HIS MAJESTY THE KING
— AND —
SEAN GARDINER
Before Justice M.K. WENDL Heard on January 19, 2024 Reasons on Adjournment Application Released January 25, 2024
S. MacDougall.................................................................................... Counsel for the Crown L. Fedak….….……………………….…….…...………...…....……Counsel for S. Gardiner
WENDL J.:
[1] On the day of trial, January 19, 2024, the Crown requested an adjournment because the complainant was unavailable due to having day surgery. Ms. Fedak is opposed to the adjournment application. For the following reasons, I decline to grant the adjournment.
[2] Mr. Gardiner was charged on May 18th, 2023. Ms. Fedak held a resolution meeting in July of 2023 and the trial was set on August 15th, 2023, for January 19th, 2024. The Crown only subpoenaed the complainant January 11, 2024, there is no evidence of any attempt to contact the witness prior to January 11, 2024. On January 16 and 17, 2024, the investigating officer attempted to reach the complainant to remind her of the trial date. When he finally got ahold of her, she told him she had surgery planned for that day and that, while she still wanted to participate in the process, she was not going to attend the trial because of the surgery. She also advised the officer that she called the number at the bottom of the subpoena and left a message stating the same. It appears no one called her back nor is there any evidence that this message was ever relayed to the Crown attorney’s office so that they could deal with the issue. Moreover, I have no evidence as to what the surgery was for, how long she would actually be in the hospital, how long the recovery would take, when the surgery was booked, whether it was an emergency or not, if a new date for surgery could have easily been obtained or whether there was a long wait list.
[3] The Crown argues that an adjournment must be granted given the serious nature of the case and the fact that the Darville test has essentially been met. Ms. Fedak points out, first, that the adjournment application falls afoul of the rules which require adjournment applications to be made 60 days before trial. As such, the Crown is required to ask for leave and in addition to that the 60 days sets a minimal standard by which I should judge the actions of the Crown, i.e. the witness should have been subpoenaed at least 60 days before trial so if there was an issue, the application could be brought in time. She also argues that based on all the circumstances it is not in the interests of justice that the adjournment application be granted.
ANALYSIS
[4] The test for an adjournment in these circumstances was stated by Justice Watt in Ke:
Decisions on applications for an adjournment involve the exercise of judicial discretion. They require consideration of all the circumstances to determine what is in the best interests of the administration of justice. The exercise of discretion must be principled. It must be firmly grounded in the circumstances disclosed in the case at hand. The interests of justice are a joint venture, not a sole proprietorship. They are not for the sole use of one party to the exclusion of the other.
In this case, the Crown's request for a brief adjournment was based on the absence of a material witness who had already testified in-chief. The controlling principles for the exercise of that discretion were those of Darville. It was an error of law for the trial judge to dismiss the adjournment request without providing the Crown with an opportunity to demonstrate that it had met the requirements of Darville. And it was equally an error not to consider those principles.
[5] First, looking at the Darville test, I agree the first and third criteria of the test have been met: the witness has material evidence to give, and it is reasonable that they will be able to get ahold of her in the future. The issue is whether the Crown is guilty of laches.
[6] There is absolutely no explanation as to why the Crown waited almost 5 months after the trial date was set to subpoena the witness, which was only 8 days before the trial. There is absolutely no information as to why, after the complainant called the number at the bottom of the subpoena to indicate that she was unavailable to attend because of surgery, this was not conveyed to the crown. There is no evidence of any contact with the witness prior to the subpoena being served. There is no evidence as to how long the recovery from day surgery would have been, what time during the day the surgery was, whether the witness could have attended by zoom, if the surgery could have easily been re-scheduled, and no evidence as to how long the surgery was scheduled for. Based on this complete lack of evidence to explain the delay in serving the subpoena and the circumstances surrounding the non-attendance of the witness, I must find the Crown guilty of laches. I would like to note that Ms. MacDougall only received the file 4 days prior to the trial, she is in my view an exceptional Crown and is not responsible for this issue, in fact, I am confident that had she been assigned to this matter at an earlier date we would not be in this position.
[7] Even if I am wrong, and the Crown is not guilty of laches by simply having served the subpoena, on the totality of the circumstances I would still not grant the adjournment. As Justice Watt noted in Ke, that while I am required to consider the Darville test, I must look at the totality of circumstances in determining whether to grant the adjournment.
[8] Looking at the circumstances in their totality, Ms. Fedak’s actions stand out. She acted with alacrity and dispatch. She went through the intake process and had a trial set within 3 months of the offence date. She was fully prepared for trial on January 19, 2024, as evidenced by her trial binder. On the other hand, there is absolutely no explanation as to why the Crown waited so long to subpoena the complainant. Although the Crown argues the seriousness of the offence weighs in favor of the granting of the adjournment, it cuts both ways. Given the seriousness of the offence the Crown should not have acted in such a dilatory manner. In the words of Jordan, I can only call their actions complacent. Therefore, in the interests of justice I decline to grant the adjournment.
Released: January 24, 2024
Signed: Justice M.K. Wendl