ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 13-70000071-0000

DATE: 20151119

BETWEEN:

HER MAJESTY THE QUEEN

– and –

MARK PUSEY

John Scutt, for the Crown

Paula Seymour, for Mark Pusey

HEARD: November 9, 2015

r.f. goldstein j.

REASONS FOR JUDGMENT ON ADJOURNMENT APPLICATION

[1] Mr. Pusey is charged with one count of fraud over $5000.00. He was employed by the Fred Victor Centre. The Fred Victor Centre is a charity. The Crown alleges that he committed employee fraud.

[2] Ms. Seymour, on behalf of Mr. Pusey, applied for an adjournment on the trial date. She argued that there were outstanding documents she required to make full answer and defence. She also said that a Crown witness, Leah Cayabyab, would not be available for trial. She said that the defence needed that witness.

[3] Mr. Pusey’s trial was scheduled to commence November 9, 2015. I heard submissions from both counsel and reviewed transcripts and correspondence provided by Crown counsel, Mr. Scutt. I indicated that the application for an adjournment was dismissed with reasons to follow. These are my reasons.

BACKGROUND

[4] Ms. Seymour argued that she was still missing disclosure and that there was an issue with a material witness. I will deal with each of these in turn.

The Disclosure Issue

[5] Ms. Seymour indicated to me that she had requested various documents and notes that were in the possession of the Fred Victor Centre. She mentioned, for example, minutes of certain meetings. She also mentioned notes of meetings between Mr. Pusey and Mark Aston, the executive director of the Fred Victor Centre.

[6] Mr. Pusey’s original counsel was Donald McLeod, now Mr. Justice McLeod of the Ontario Court of Justice. Ms. Seymour took over the file after his appointment in 2014. There was an original trial date scheduled for March 2015 but the matter could not be reached. An application to dismiss the proceedings for delay was dismissed by Mr. Justice Trafford on October 16, 2015.

[7] On January 22, 2015 there was an appearance in this Court to confirm trial readiness for the March 2015 trial date. Ms. Seymour stated:

MS. SEYMOUR: Otherwise we are ready to proceed with the matter. And if Your Honour’s agreeable, I’ve discussed this with my friend, I believe it was yesterday or the day before, we are prepared to have it put straight over to the trial date.

THE COURT: All right.

MS. SEYMOUR: There are some other disclosure matters in light of – well, in preparation for this matter that I will be requesting from my friend. But my friend and I have discussed this before, and that’s something that we can take care of without having to bring the matter back before this Court.

[8] On February 20, 2015 Mr. Rothman, the assigned Crown counsel, wrote to Ms. Seymour. He reminded Ms. Seymour that she had mentioned outstanding disclosure in court. He noted that there had not, as yet, been a request. He further noted that the trial date was fast approaching.

[9] Ms. Seymour responded on March 1, 2015 with a request to Mr. Rothman. She requested several documents or sets of documents and listed them. Mr. Rothman responded on March 5, 2015 and indicated that none of the records sought by the defence were in the possession of the Crown. He stated that he had passed on the request to the Fred Victor Centre. The staff of the Fred Victor Centre had indicated to him that some of the records existed and some did not. The Fred Victor Centre would provide whatever they had.

[10] On March 12 and 17, 2015 Mr. Rothman wrote to Ms. Seymour indicating that the material she had requested was available for pick-up at the Crown’s office. Further material was disclosed to Ms. Seymour in Court on March 23 and 24, 2015. During a court appearance on March 23, 2015 Ms. Seymour confirmed that the defence was ready to proceed.

[11] No further requests for disclosure were made in writing after March 24, 2015. Apparently Ms. Seymour did mention outstanding disclosure in telephone conversations with Mr. Scutt, who had taken over the file from Mr. Rothman.

[12] On October 30, 2015, with the trial date fast approaching, Mr. Scutt wrote the following to Ms. Seymour:

I have reviewed our file and have no correspondence from your office since March 2015 at which time the Crown replied to requests for disclosure made by the defence for the first time. I have reviewed that correspondence and the Crown did provide additional materials from the Fred Victor Centre in response to your requests. It is my understanding that the Fred Victor Centre provided the requested material that was in their possession and that some materials could not be located or did not exist. There was never any indication from the defence that the disclosure provided in March 2015 was insufficient or that the Crown was not responding appropriately to the disclosure request.

[13] On November 2, 2015 Mr. Scutt wrote again to Ms. Seymour:

Further to my correspondence dated October 30, 2015, I have spoken to Det. Radford who believes that the Fred Victor Centre did provide what it had available in terms of board minutes etc back in March 2015 when they were first requested.

The Material Witness Issue

[14] One of the Crown witnesses was to be Leah Cayabyab. Ms. Cayabyab was an employee of the Fred Victor Centre. Mr. Pusey had been her direct supervisor. On September 3, 2015 Mr. Scutt wrote to Ms. Seymour to indicate that Ms. Cayabyab would not be available for trial. She was to leave Canada on September 13, 2015 for The Philippines. He stated that the police would be taking a sworn videotaped statement in order to preserve her evidence. He invited Ms. Seymour to attend and cross-examine Ms. Cayabyab. He said that the Crown intended to tender the statement pursuant to the principled exception to the hearsay rule.

[15] On September 10, 2015 Mr. Scutt wrote to Ms. Seymour that the statement would be taken from Ms. Cayabyab that afternoon. It is not clear to me what communications Ms. Seymour and Mr. Scutt had between September 3, 2015 and September 10, 2015. Ms. Seymour indicated to me in Court that on September 10, 2015 she attempted to find Det. Chevalier, but was unable to do so. I certainly accept that Ms. Seymour made good faith efforts to attend on September 10, 2015.

[16] Mr. Scutt later determined that he would not seek to tender a statement by Ms. Cayabyab as part of the Crown’s case. That would have ended the matter but for the fact that Ms. Seymour says she is an important witness for the defence. Ms. Seymour asked Mr. Scutt about Ms. Cayabyab’s whereabouts. Mr. Scutt responded in a letter dated October 30, 2015. He said that the police had made efforts to locate Ms. Cayabyab but had not been able to find her. They were trying to locate her through family members. On November 7, 2015 Mr. Scutt provided Ms. Seymour with Ms. Cayabyab’s email address and the Twitter account for her daughter. He later provided Ms. Seymour with a list of email addresses and telephone numbers for Ms. Cayabyab’s relatives.

ANALYSIS:

[17] A trial judge has discretion as to whether to grant an adjournment. Of course, that discretion must be exercised on a principled basis. In Darville v. The Queen (1956), 1956 463 (SCC), 116 C.C.C. 113 (S.C.C.) at para. 13 the Supreme Court of Canada set out the conditions on which an adjournment may be granted:

There was no disagreement before us as to what conditions must ordinarily be established by affidavit in order to entitle a party to an adjournment on the ground of the absence of witnesses, these being as follows:

(a) that the absent witnesses are material witnesses in the case;

(b) that the party applying has been guilty of no laches or neglect in omitting to endeavour to procure the attendance of these witnesses;

(c) that there is a reasonable expectation that the witnesses can be procured at the future time to which it is sought to put off the trial.

The Court noted that an adjournment application should be supported by affidavit evidence.

[18] In R. v. Kocsis, [2003] O.J. No. 4502 (Sup.Ct.) Henderson J. stated that the three factors should be considered as a whole. He also noted that while the applicant need not prove all three factors on a balance of probabilities, there must be some evidence relating to each of the three factors.

[19] I agree with Henderson J. that there must be at least some evidence on each of the three factors. A judge must satisfied on a balance of probabilities, based on the whole of the evidence, that an adjournment should be granted. I agree that a judge is not limited to the three factors mentioned in Darville.

[20] Rule 26 of the Criminal Proceedings Rules is also relevant. That Rule governs applications for adjournment in the Superior Court of Justice. Rule 26.03 requires that the applicant serve his or her materials on the responding party no less than 15 days prior to the hearing of the application. The application itself must be heard no less than 10 days prior to the trial date. Of course, if the application is urgent Rule 3.02 of the Rules permits a judge to abridge the filing times.

[21] Sub-rule 26.04(1) states that an application for adjournment shall be supported by an affidavit by or on behalf of the applicant. Sub-rule 26.04(2) sets out what should be in the affidavit:

[22]

(2) The affidavit by or on behalf of the applicant required by subrule (1) shall contain:

(a) particulars of the indictment in which is contained the charge upon which the order adjourning the date upon which trial proceedings are scheduled to commence is sought;

(b) particulars of any prior applications, whether on behalf of the accused or the prosecutor, to have the trial of the indictment adjourned from a date fixed for trial to a subsequent date, including, where available, transcripts of proceedings taken upon such applications;

(c) a full statement of all facts material to a determination of the application without disclosing any solicitor client communications in respect of which solicitor client privilege has not been waived; and,

(d) a statement of the date or dates to which it is proposed to adjourn the matter for trial.

[23] The Rule was not followed in this case. No formal notice of application was filed. No supporting affidavit was filed. I can understand that there may be circumstances under which the time limits cannot be complied with. This case may be an example of that – and I do understand that there may have been personal circumstances that made it problematic for counsel to fully comply with the Rule – but it is regrettable that there was no material supporting the application. The Court was left in the position of having an incomplete record. It is also unfair to the opposing party (in this case, the Crown). It was unfair because it presents the Crown with a moving target.

[24] Mr. Scutt, however, did not raise the issue of non-compliance with the Rules. No doubt he did not do so out of a sense of fairness to Mr. Pusey. No doubt the application also did not take him entirely by surprise. He came prepared with material. The flip side is that if Mr. Scutt was not taken entirely by surprise, then defence counsel obviously knew she would be seeking an adjournment on the trial date.

[25] I have now seen several adjournment applications made by counsel simply standing up and asking for one. That practice has become distressingly common. Rarely is proper supporting material submitted. There are certainly occasions where counsel, acting in good faith, need to make an application at the last minute. Nobody should be denied a hearing where that happens. Sometimes, however, it is clear well in advance that an adjournment will be sought. The informal practice of simply standing up and asking should be strongly discouraged. In my view, I could have dismissed this particular application without even entertaining it given the lack of proper supporting material.

[26] In this case, the defence was unable to meet the standard set out in Darville in relation to both the disclosure issue and the material witness issue. I say this for the following reasons:

• There was no evidence that any of the documents sought by the defence were outstanding. It bears noting that the documents were in the possession of a third party, not the Crown. There was no evidence of any steps taken to make a third party records application. Indeed, there was evidence that the Crown had already provided the documents.

• In any event, there was no evidence or information before me to suggest that there were documents missing that were material.

• With great respect, I find that the defence was dilatory in seeking the missing documents (that were not really missing). After March 2015 Crown counsel could be forgiven for thinking that there was no outstanding disclosure. Certainly nothing was brought to Crown counsel’s attention until shortly before the trial. Ms. Seymour very fairly and candidly fell, as she put it, on her own sword. Of course, I pause to note that if there were serious prejudice to her client’s right to have a fair trial then I might have taken a different view. I was not satisfied that the fairness of the trial was ever in jeopardy.

• On two occasions the defence indicated on the record that it was ready to proceed.

• There is simply no evidence that Ms. Cayabyab is a material witness for the defence. There is also no evidence that Ms. Cayabyab could be produced at a future time.

[27] Under these circumstances, I found that the defence had not met its burden.

DISPOSITION

[28] The application for adjournment was dismissed.

R.F. Goldstein J.

Released: November 19, 2015

COURT FILE NO.: 13-70000071-0000

DATE: 20151119

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

MARK PUSEY

REASONS FOR JUDGMENT ON ADJOURNMENT APPLICATION

R.F. Goldstein J.