Court File and Parties

COURT FILE NO.: CR-38/21 DATE: 20220218

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – K.A. and A.S.A.

Counsel: Ms. A. Stevenson, for the Crown Ms. D. Lafleur, for K.A., Accused Mr. R. Tomovski, for A.S.A., Accused

HEARD: February 18, 2022

Endorsement - Adjournment Request by One of the Accused

CONLAN J.

[1] The granting of an adjournment is within the discretion of the trial judge. Generally, that discretion will not be interfered with on appeal unless it is held that the trial judge did not exercise it in a judicial way, or unless the refusal to grant the adjournment has resulted in a miscarriage of justice. R. v. Olbey, (1977), 38 C.C.C. (2d) 390 (Ont. C.A.), at page 398, and R. v. Smith, at paragraph 48.

[2] These two accused males are charged with serious human trafficking offences. One accused has brought a section 10(b) Charter application, alleging that his right to counsel was violated by the police and requesting a remedy of exclusion of evidence under section 24(2). We are in the middle of the voir dire on that application. The evidence presented by the Crown is finished. The applicant accused has undertaken to testify on the application, but he asks for an adjournment to the next day of the pretrial applications (which date is in March 2022, after a hiatus). His counsel has advised the Court that she feels unprepared to conduct her client’s examination-in-chief, and she advises further that her client is equally unprepared. The lack of preparedness is alleged to be on account of the client being in custody in Quebec and a general frustration in efforts to communicate between counsel and client because of COVID-19 lockdowns and other restrictions at the correctional facility. Ironically, it was the applicant accused’s own choice to appear by Zoom from that facility, even after this Court dismissed an application by the Crown for remote testimony during the pretrial applications (a remote testimony request that was vehemently opposed by the accused).

[3] Neither the Crown nor the co-accused consents to the adjournment request. I understand their positions. They are not without merit. This is an adjournment request being made by the applicant, after all.

[4] In a brief oral ruling, this Court granted the adjournment request, on the understanding that we would use the balance of the time today to start another pretrial application and, further, on the understanding that this Court would be ordering the applicant accused to appear at Court in person in March 2022, regardless of his wishes and regardless of whether he is in custody or not at that time.

[5] This Court’s reason for granting the adjournment request, albeit reluctantly, is simple. I think that the risk of any delay that might be caused by the adjournment, which delay is expressly not waived by the co-accused, is outweighed by the risk of an impairment in the applicant accused’s right to make full answer and defence. The current Charter application is an important one, as the evidence sought to be excluded is a cellular telephone belonging to the applicant accused that contains communications that could be considered to be highly inculpatory. The nature of the current Charter application is one where evidence from the accused is often helpful, though certainly not required, particularly on issues of detention and the desire to contact counsel of choice. To force the applicant accused to testify today, in the face of his counsel’s submission, as an officer of the Court, that both she and her client are unprepared, would be dangerous, unless I think that it is simply a ruse. I do not think that it is.

[6] Balancing all of the competing interests, I am satisfied that the adjournment is in the interests of justice. This Court will do its very best to complete all of the pretrial applications and commence the trial on time, as scheduled.

C.J. Conlan Electronic signature of Conlan J.

Released: February 18, 2022