R. v. Evic, 2014 NUCA 01

In the Court of Appeal of Nunavut Citation: R. v. Evic, 2014 NUCA 01 Date: 20140214 Docket: 10-13-005 CAS Registry: Iqaluit Between: Her Majesty the Queen Appellant - and - Sam Qappik Evic Respondent _______________________________________________________ Oral Reasons for Decision of The Honourable Mr. Justice Ronald Berger _______________________________________________________ Appeal from the Acquittal by The Honourable Madam Justice B.

Tulloch Dated the 16th day of May, 2013 (Docket: 10-12-126) Amended Decision: An amended decision was issued on September 29, 2014; the corrections have been made to the text and the amendment is appended to this judgment. _______________________________________________________

Oral Reasons for Decision of The Honourable Mr. Justice Ronald Berger _______________________________________________________ (NOTE: This document may have been edited for publication) [1] That which is in issue on appeal is whether the trial judge properly exercised her discretion to deny an adjournment sought by theCrown. [2] The parties are agreed that the Respondent, who was prosecuted for an alleged spousal assault, was in attendance for his trial at thesittings of the Court commencing May 13, 2013, the first day of the circuit. [3] The complainant had been served with a subpoena.

On May 13, the matter was spoken to briefly. There is no indication that thecomplainant was in attendance. The Respondent was instructed to return to Court the next afternoon. [4] At the end of the day on May 14, the Respondent, who was in Court “all day”, was told to return on the afternoon of the 15th. [5] On May 15, defence counsel advised the Court that he was ready to proceed to trial. The following statement appears in paragraph 8of the Crown’s factum: ...

Crown counsel explained that he had met with the complainant but that she was not in attendance because he had not anticipated thismatter actually proceeding to trial on the 15th and had therefore not asked her to attend on that particular day. ... [6] Accordingly, the matter was put over to the following morning on the basis that, as the judge put it, the matter would proceedwhether or not the complainant was present. [7] There was no evidence before the Court that the complainant was present on either May 13, 14 or 15, yet the matter was scheduledfor the morning of May 16, the last day of the sittings, at which time all were present except for the complainant.

The Crown asked thatthe matter go over to the August sittings, which, of course, would leave the fate of the accused in limbo and unresolved for another threemonths, a factor which the judge was bound to take into account. (The offence allegedly took place on November 4, 2012). [8] After some discussion, a material witness warrant was issued for the complainant’s arrest pursuant to s. 705(1) of the CriminalCode. The judge adjourned for one hour indicating that if the Crown were unable to locate her, the trial would proceed without herevidence and that no further adjournment would be granted.

The witness was not located. The Crown offered no evidence. TheRespondent was acquitted. [9] The Crown maintains on appeal that the trial judge erred in her application of the test for an adjournment based on the non-attendance of a witness as set out by the Supreme Court of Canada in Darville v. The Queen, (SCC), [1956] SCJ No. 82[Darville]. The test is the following: There was no disagreement before us as to what conditions must ordinarily be established by affidavit in order to entitle a party to anadjournment 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. Darville , above, at para. 13 (Respondent’s factum, para. 11) [ 10 ] In issue here, in my opinion, are the second and third branches of the test. [ 11 ] There is, of course, an evidentiary burden on the applicant seeking an adjournment. In this case, there was no information before the Court demonstrating that the subpoena had been served on the complainant and, if so, for what date.

The Court was told that during the afternoon of May 16, no answer could be obtained at the complainant’s door. Importantly, the Court was well aware that the complainant did not attend Court in any event on each of the four days that the Court was sitting. It seems to me that the Court was entitled to rely on the acknowledgement of the Crown that although the matter was set for trial, the Crown had not anticipated that the matter would actually proceed on May 15.

Crown counsel at the hearing of this appeal advised that the usual practice is to subpoena witnesses to attend at the first day of the sittings at which time the actual date of the trial is fixed. There is no evidence in the record that the Crown sought a warrant for non-attendance on May 13, 14 or 15. [ 12 ] In all of these circumstances, I cannot say that the evidentiary burden of the Crown was satisfied.

Indeed, the trial judge exercised considerable patience and the decision to force the Crown to proceed without the benefit of the complainant’s testimony was made carefully and judicially. [ 13 ] For these reasons, the appeal must be dismissed. Application heard on February 11, 2014 Reasons filed at Iqaluit, Nunavut this 14th day of February, 2014 ________________________________________ Berger J.A. Appearances: S. Hughes for the Appellant Sam Qappik Evic Self-Represented

_______________________________________________________ Amendment of the Reasons for Judgment Reserved of The Honourable Mr. Justice Berger _______________________________________________________ In the list of appearances the Respondent, Sam Evic was listed as the appellant. This has been corrected to “Self-Represented”. Please replace the amended pages in your hard copy of the judgment.