COURT FILE NO.: YC-18-0055-00AP
DATE: 2019-09-10
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
A. Sadler, for the Crown
- and -
T.S.
J. Dagsvik, for the Accused
Accused
HEARD: June 10, 2019, at Thunder Bay, Ontario
WARNING
UNDER S. 110 OF THE YOUTH CRIMINAL JUSTICE ACT, NO PERSON SHALL PUBLISH THE NAME OF A YOUNG PERSON, OR ANY OTHER INFORMATION RELATED TO A YOUNG PERSON, IF IT WOULD IDENTIFY THE YOUNG PERSON AS A YOUNG PERSON DEALT WITH UNDER THE ACT
Mr. Justice D. C. Shaw
Decision on Appeal
[1] This is an appeal by the Crown against the acquittal of the respondent, a young person, on a charge of assault with a weapon, contrary to s. 267 (b) of the Criminal Code, and on two charges of failure to comply with a sentence, contrary to s. 137 of the Youth Criminal Justice Act.
Background
[2] It was alleged that the respondent had assaulted the complainant, D.A., with a beer bottle.
[3] The charges were scheduled for trial in the Ontario Court of Justice on July 19, 2018, before Burton J. sitting as a Youth Justice Court judge.
[4] On April 25, 2018, a Subpoena to a Witness was issued out of the Youth Justice Court by a Justice of the Peace, requiring the complainant to attend before the presiding Youth Justice Court Judge on July 19, 2018, to give evidence for the prosecution.
[5] The complainant did not attend for trial on July 19, 2018.
[6] The complainant had not been served personally with the subpoena.
[7] At trial, the Crown produced an affidavit of service, sworn by a peace officer. It indicated that on May 9, 2018, the officer served:
_______, the witness name (sic) in the attached subpoena with a true copy of the subpoena, in the manner indicated below, namely…
[8] The officer then checked off a box on the form and wrote in the words, "(mother) S.A.", so that the pre-printed form read:
By leaving it for him/her at his/her usual place of abode with (mother) S.A. who appeared to be at least sixteen years of age, because the witness could not conveniently be found.
[9] When the complainant did not attend for trial after being paged, the Crown advised the presiding judge that the complainant was a material witness, without whom the Crown could not prove its case. The Crown asked for a warrant. The Crown also asked for an adjournment of the trial.
[10] The trial judge directed that S.A. be paged. There was no response to the page.
[11] The defence acknowledged at trial that the complainant was a material witness. The defence, however, objected to an adjournment.
[12] The presiding judge denied the Crown's request for a warrant and for an adjournment. The trial judge stated:
Well, I don't agree that I can presume that his mother told him anything, including the court date. I can't infer anything from his absence, including that he's aware of the consequences of the failure to appear. Obviously, I don't have any, any indications of coercion or threats which might be relevant to the failure to appear but I can't issue a warrant since I don't have proof that he was personally served. I know he wasn't personally served.
I don't have any proof that he is willfully absent because we've got no proof that he is actually aware of the court date. So I can't issue the material witness warrant. And without personal service, I'm afraid that's the end of the matter. I can't grant an adjournment. So, no material witness warrant, no adjournment.
[13] The Crown then requested that the respondent be arraigned on all counts. The respondent pleaded not guilty. The Crown advised that it had no evidence to call and invited the court to dismiss the charges. The charges were dismissed.
[14] The Crown appeals the acquittal on the grounds that the presiding judge erred in finding that a material witness warrant was not available in the absence of evidence of personal service and, in the alternative, that the judge erred in refusing to grant the Crown's request for an adjournment.
Applicable Provisions of the [Criminal Code](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html)
[15] Section 701 of Part XXII of the Criminal Code sets out the procedure governing service of a subpoena.
[16] Where the person whose attendance is required does not reside in the province where the proceedings were instituted, s. 701(2) requires that the subpoena issued under s. 699(2)(b) shall be served personally on the person to whom it is directed.
[17] Where, as in this case, the person whose attendance is required resides in the province where the proceedings were instituted, s. 701(1) provides that a subpoena shall be served in accordance with the provisions of s. 509(2). Section 509(2) provides:
509(2) A summons shall be served by a peace officer who shall deliver it personally to the person to whom it is directed or, if that person cannot conveniently be found, shall leave it for him at his last or usual place of abode with some inmate thereof who appears to be at least sixteen years of age.
[18] Where a material witness who has been properly served with a subpoena fails to attend court, a warrant for arrest may issue. Section 705(1) provides:
705(1) Where a person who has been served with a subpoena to give evidence in a proceeding does not attend or remain in attendance, the court, judge, justice or provincial court judge before whom that person was required to attend may, if it is established:
(a) that the subpoena has been served in accordance with this Part, and
(b) that the person is likely to give material evidence.
issue or cause to be issued a warrant in Form 17 for the arrest of that person.
Position of the Parties
Crown
[19] The Crown submits that the trial judge concluded that because the complainant had been served substitutionally and not personally, a material witness warrant was not available at law and that because a material witness warrant could not issue, she could not grant the Crown's request for an adjournment.
[20] The Crown acknowledges that, at law, the trial judge had discretion as to whether to issue a warrant for the arrest of the complainant and whether to grant an adjournment. However, the Crown submits that the trial judge approached those two issues as if she had no discretion because there had been no personal service.
Respondent
[21] The defence accepts that it would have been an error in law if the trial judge had determined that she had no discretion to issue a material witness warrant where there had been substitutional service under s. 509(2) and if she had determined that she had no discretion to grant an adjournment where a material witness warrant was not issued.
[22] However, the respondent submits that this is not the proper conclusion to draw from the reasons of the trial judge. Rather, the respondent submits that the trial judge properly exercised her discretion not to issue a warrant and not to grant an adjournment in responding to the issues that were presented to her by counsel.
[23] The respondent submits that, as an exercise of discretion, the standard of review is palpable and overriding error.
Discussion
[24] I agree with the position of the respondent. The reasons of the trial judge in denying the Crown's request for a material witness warrant and for an adjournment can reasonably be read as an exercise of discretion rather than as a misstatement of the law.
[25] The trial judge is presumed to know the law. See R. v. Tennant, 2018 ONCA 264, at para. 3. Accordingly, the trial judge is presumed to know that s. 509(2) of the Criminal Code provides for substitutional service and that s. 705(1) of the Criminal Code gave her discretion to issue a material witness warrant if she was satisfied with the substitutional service.
[26] The Crown advised the trial judge that the complainant had been served with a subpoena by way of substitutional service upon S.A., the mother of the complainant. The trial judge asked to see the affidavit of service. She next inquired if Ms. A was present in court. She then had Ms. A. paged. It is reasonable to assume that the trial judge took these steps in order to determine whether Ms. A. had made the complainant aware of the court date. In my view, it would have been inconsistent for the trial judge to have inquired whether Ms. A. was present and to have had Ms. A. paged if the trial judge had concluded that, at law, substitutional service on Ms. A. could never be effective service on the respondent and that she therefore had no discretion to issue a material witness warrant.
[27] Although the reasons of the trial judge could have been more clearly worded, I take her words, "I can't issue the material witness warrant", in context to read "I won't issue the material witness warrant", because she was not satisfied that the complainant was willfully absent, that he was actually aware of the court date.
[28] In R. v. Scott, 1990 CanLII 27 (SCC), [1990] 3 S.C.R. 979 the Supreme Court of Canada held that a material witness warrant is "an exceptional remedy" because it involves the liberty of the subject. The court stated:
The issuance of the warrant should therefore be subject to careful consideration when an application is made to the trial judge for its issuance.
[29] The wording of s. 705(1) is permissive. Just because a subpoena has been served substitutionally, in accordance with s. 509(2), it does not follow that a material witness warrant must be issued if the person who is named in the subpoena does not attend court.
[30] Having read the affidavit of substitutional service, the trial judge was concerned to know if the complainant's mother had made the complainant aware of the subpoena. There was no evidence before her of whether the complainant actually lived with his mother or whether he was in contact with his mother. There was no information as to why the complainant could not "conveniently be found" or what steps had been taken, without success, to locate and personally serve him. In the context of the serious consequences that would be visited upon the complainant if a warrant were issued, namely arrest and confinement, it was open to the trial judge, where she had nothing before her other than the bare bones of a pre-printed affidavit of service, to exercise her discretion not to issue a warrant. That discretion is entitled to deference. The Crown has not established that the trial judge made a palpable and overriding error in the exercise of that discretion.
[31] The decision whether to grant an adjournment was also a matter of discretion for the trial judge. I read the words of the trial judge, to mean that, in the circumstances of the case before her, she would not exercise her discretion to grant the Crown's request for an adjournment. The trial judge would know that, at law, just because she had not issued a warrant she was not precluded from exercising her discretion to adjourn the trial.
[32] The onus was on the Crown to establish the grounds for the adjournment. The Crown was not entitled to the adjournment as of right.
[33] In Darville v. The Queen, 1956 CanLII 463 (S.C.C.) at p 117, the Supreme Court of Canada stated that the conditions that must ordinarily be established by affidavit in order to entitle a party to an adjournment on the grounds of the absence of witnesses are 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 endeavor to procure the attendance of these witnesses; and
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.
[34] The Crown submits that absent some challenge by the defence to the affidavit of substituted service, the affidavit of service should be accepted at face value to establish that there has been no neglect within the meaning of the second condition of the Darville analysis.
[35] In my view, the discretion of the trial judge to grant an adjournment cannot be limited on the grounds that the defence did not challenge the affidavit of service. It was open to the trial judge, on her own, to draw conclusions as to whether the Crown had failed to establish that it was not guilty of neglect in procuring the attendance of the complainant. I refer again to the paucity of information that was before the trial judge on the issue of service on the complainant, beyond the pro forma pre-printed affidavit of substitutional service.
[36] At trial, the Crown did not address the Darville analysis. It was the Crown that sought the adjournment and it was the Crown that had to show why the adjournment should be granted. The defence did not have to show why the adjournment should not be granted.
[37] On this appeal, both the Crown and the respondent refer to R. v. A.T. (1991), 1991 CanLII 6104 (AB KB), 69 C.C.C. (3d) 107 (Alta. Q.B.). At trial in that case, the Crown requested an adjournment because witnesses had not appeared. Two of the witnesses had been served by substitutional service. In considering the second condition of the Darville analysis, McDonald J., sitting on appeal, stated, at para. 14:
The trial judge must decide whether in the circumstances of the case it can justifiably be said to have been "neglect" when the officer has decided to serve "substantially". There ought to be no presumption whether that such a manner of service constituted "neglect" or that it did not. The decision should be made in the light of the realities of the situation and always bearing in mind that the decision whether or not to grant the adjournment should be consistent with the interests of justice.
[38] If there is no presumption that substitutional service establishes that there has not been neglect, i.e. if the affidavit of service is regarded as "neutral" on the issue of neglect, the trial judge in the instant case had no other information before her from which she could reasonably conclude that the Crown had satisfied its onus to justify its request for an adjournment.
[39] There was also no evidence as to condition (c) of Darville, namely, whether there was a reasonable expectation that the absent witness could be procured at a future trial date.
[40] The trial judge's exercise of discretion should also be assessed in the context of the fact that these were youth proceedings. In R. v. M. (G.C.), 1991 CanLII 7057 (ON CA), [1991] O.J. No.885 (C.A.), the Court of Appeal held that there is a particular need to conclude youth court proceedings without delay and that, as a general proposition, youth court proceedings should proceed to a conclusion more quickly than those in the adult criminal justice system.
[41] I am not satisfied that the Crown has established that the trial judge made an overriding and palpable error in exercising her discretion not to grant an adjournment.
Conclusion
[42] For the reasons given, the appeal is dismissed.
"original signed by"
The Honourable Justice D. C. Shaw
Released: September 10, 2019
COURT FILE NO.: YC-18-0055-00AP
DATE: 2019-09-10
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
T.S.
Accused
DECISION ON APPEAL
WARNING
UNDER S. 110 OF THE YOUTH CRIMINAL JUSTICE ACT, NO PERSON SHALL PUBLISH THE NAME OF A YOUNG PERSON, OR ANY OTHER INFORMATION RELATED TO A YOUNG PERSON, IF IT WOULD IDENTIFY THE YOUNG PERSON AS A YOUNG PERSON DEALT WITH UNDER THE ACT
Shaw J.
Released: September 10, 2019
/lvp