Crown: W. Houtmeyers, Federal Crown Attorney, Toronto
Defence: Craig Penney, Criminal Defence Lawyer, Toronto
¶ 1 CROWN: Yes, Your Honour, this matter is before you for an application brought by the Crown for an adjournment of a trial date currently scheduled, I understand, for the 12th of June.
¶ 2 THE COURT: I read the application. Mr Penney, the Defence position with respect to the application?
¶ 3 MR PENNEY: I am opposed, Your Honour. The Crown has to establish essentially three grounds out of Darville: Number 1, the witness is material, which I concede; secondly, the witness would be available; which I concede. And there is a third ground the Supreme Court of Canada said Your Honour must consider, and that's whether there has been any negligence or laches on the part of the Crown.
¶ 4 The difficulty with the application filed by the Crown is that we don't know when these leave dates were drawn. I can indicate to Your Honour as an officer of the Court that I did call the affiant ... within an hour of receiving this application and told her I would like to know that; because that would be relevant, in my submission, for Your Honour's consideration as to whether this application should be granted.
¶ 5 Because many times, what's happening in these cases, is that the officer leave dates were drawn well before the trial date was even set. And then, it's only when we get very close to the trial like we are now that an application is put before the Court. So, my submission, without that information — I'm content that it go over. I asked my friend about this. She doesn't know when the leave dates were drawn and whether there is any negligence on the part of the Crown here in getting those leave dates in and when the dates should have been set.
¶ 6 But although it is not a serious case to the Crown — I mean, we're dealing with less than a gram of marijuana — it is a serious case to Mr. S.B. And I'm asking Your Honour to either adjourn this to the morning of the trial so that my friend can make inquiries, or simply to dismiss the application.
¶ 7 CROWN: Your Honour, my friend is correct in his statement that the Crown is unable to make any representations before this Court with respect to the issue of when the officer's leave dates were drawn. I can't comment one way or the other to Your Honour on that.
¶ 8 I can indicate, I understand the witness is going to be out of the country during those days, is a material witness for the Crown, which forms the basis for our application. The Crown would simply ask Your Honour grant the adjournment. This is the first trial date set on this matter. And I note that the matter is dated. The offence date is December the 31st of the year 2001, so it's...
¶ 9 THE COURT: I think it's November the 26th, is it not?
¶ 10 CROWN: I'm sorry, it's misprinted on the back of the Crown's brief. That's correct, it is November the 1st of 2001. The Crown's submission, given that this is the first trial date, the Crown has made efforts to bring an application before the day of trial and the material witness will be unavailable. The Crown simply asks the Court to grant this application for the first trial date.
¶ 11 THE COURT: Is there some reason why the information requested by Mr Penney cannot be obtained? I appreciate, perhaps not right now. But by tomorrow or the next day?
¶ 12 CROWN: I understand from my friend that he spoke to Ms C*** of my office, who is the individual, Your Honour, to my knowledge, who would have had that information. And she has indicated to Mr Penney that she does not have that information. So, the information is not in the Crown's office.
¶ 13 MR PENNEY: Well, exactly what she said was that, she said she didn't know, but that she would have to speak to the office. She got the file and she said it's not in the file. She figured the only way to deal with it is to speak to the officer or call the division. Since that time, I haven't heard back. But it is something that is relevant to the hearing of this application, Your Honour, and I've been diligent. I called her within an hour of getting the application.
¶ 14 THE COURT: Is there some reason if the Crown's application for an adjournment were put over to tomorrow or the next day that that information could not be obtained?
¶ 15 CROWN: I could ask that someone make efforts in the office to determine that. I can indicate, Your Honour, however, that I do believe those efforts were already made. I'm entirely sure it would be very fruitful if the matter were adjourned until tomorrow.
¶ 16 MR PENNEY: Well, the difficulty is that I don't think anyone from the Crown's office — the Crown Attorney hasn't made any efforts. I mean, I called the affiant. I don't know if she acted upon it or not.
¶ 17 Now we're in a different situation where Your Honour has indicated to an officer of the Court that this is information that should be given over, and I think my friend's effort might bear fruit where the ...
¶ 18 THE COURT: You would prefer that information, Mr. Penney?
¶ 19 MR PENNEY: Yes, I would, Your Honour. I would prefer that information, because we're very anxious that this proceed. And if there has been negligence on the Crown's part in terms of setting this date, then I'm going to be arguing very strenuously that the application should be denied; because the crown shouldn't be bringing these applications, presume that the Court's going to give it simply because it's the first date, first court date.
¶ 20 These matters are taken very seriously by the Defence and accused persons. We set the date, we've been diligent throughout. And in my submission, it would be something Your Honour can consider. I'm not asking Your Honour to dismiss it right now. I think the first ground is simply to see if we can get this information before the Court so that Your Honour can consider it and then consider exactly what to do.
¶ 21 THE COURT: Ms Houtmeyers, is there any reason why the matter ought not to go over a couple of days so that the Crown can see if they can obtain that information?
¶ 22 CROWN: I can ask, Your Honour. I can ask the affiant on the affidavit again to make those efforts. I just simply reiterate for Your Honour that I believe she has already made those efforts, was unable to obtain that information. And the Crown would be prepared to accept Your Honour's ruling today.
¶ 23 THE COURT: Well, do you wish the matter to proceed today?
¶ 24 CROWN: I'm prepared to deal with the application with the materials that the Court has before it today.
¶ 25 THE COURT: I'm not. I think it's appropriate that that information be before the Court in order that the Court be able to make determination in respect of the matter. I am going to set the matter over for a couple of days, if that is convenient, or such time as the Crown needs to make a reasonable inquiry in respect of the ...
[submissions were made re scheduling]
¶ 26 THE COURT: Thank you. Then I'm going to endorse the application: adjourned to Friday, June 7th in 112 Court at 2:00 p.m.