R. v. Collinge Date:, 2015 BCPC 111

Citation: R. v. Collinge Date: 20150323 2015 BCPC 0111 File No: 217306-1 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. SHAWN FREDRICK COLLINGE EXCERPTS FROM PROCEEDINGS RULING ON CROWN ADJOURNMENT APPLICATION OF THE HONOURABLE JUDGE M. GIARDINI Counsel for the Crown: H. Pineo Counsel for the Defendant: J. Waddington Place of Hearing: Vancouver , B.C. Date of Hearing: March 23, 2015

Date of Judgment: March 23, 2015 Introduction [ 1 ] THE COURT: I begin with a brief review of the Crown's application. The Crown, at the beginning of the continuation of Mr. Collinge's trial today, made an application to adjourn this trial because one of its witnesses, Constable Mann [phonetic], was hospitalized last Friday. Obviously, the adjournment application could not have been anticipated or made in advance. [ 2 ] The Crown upon being asked questions by the court, explained there was also another witness, Constable Stewart [phonetic], who is off on sick leave and receiving Worker's Compensation benefits.

However, the Crown was going to proceed without Constable Stewart today if Constable Mann had been available. [ 3 ] The Crown explained that both Constable Mann and Constable Stewart were involved in the arrest. Constable Mann, if I understood correctly, searched the vehicle and Constable Stewart searched Mr. Collinge. I hope that is correct. [ 4 ] MS. PINEO: Yes. [ 5 ] THE COURT: Thank you. [ 6 ] The Crown, on being asked by Mr. Waddington what it would do if its request for an adjournment was not granted, quite candidly indicated it would proceed without the witnesses.

It noted Constable Mann, who it intended to call today, has testimony to give regarding certain evidence that was located at the time of arrest. That evidence, according to the Crown, would give rise to strong inferences that this was a dial-a-dope operation. [ 7 ] Mr. Waddington for the defendant, Mr. Collinge, opposed the adjournment. He indicated that an adjournment is prejudicial to the interests of his client. Mr. Collinge, although he is a Canadian citizen, currently lives and works in the United States, in Washington State, where he is a driver for a supply company.

Consequently, (1) he has to take time off work; (2) he does not get paid; and (3) there is the additional cost of travelling and possibly getting a place to stay. His father lives here, but it was not clear to me whether he stayed with his father or not. I suppose, being 22 years old, he might want to stay on his own. In any event, there are added costs. [ 8 ] Mr. Waddington further noted there is also subjective hardship, namely, it has been very hard on his client psychologically. He is a young man. He was about 19 years old at the time he was charged in 2012 and he is now 22 years old.

This matter has been weighing on him since that time. He, therefore, opposes the adjournment and points to the fact the Crown has candidly said it would proceed even without the witnesses, if its application for an adjournment was not granted. Procedural History of the Case [ 9 ] I will now briefly review the history of this matter. The Information charging Mr. Collinge with trafficking in cocaine was sworn on July 25, 2012. The alleged offence arose out of an incident on July 24, 2012. The Crown provided a brief synopsis of what happened once the charge was laid.

Parenthetically, I note I have assumed rather than been told that Mr. Collinge is out on bail. Obviously, if he is working, he is out on bail. [ 10 ] The matter was arraigned and initial trial dates were set for July 2 and 4, 2013. At that time, the defence requested an adjournment as Mr. Waddington was not well. The adjournment was granted and Mr. Waddington and his client waived delay. [ 11 ] In November 2013, a new trial date was set for December 9 and 10, 2013. However, approximately a week after that date was set, the Crown realized one of its witnesses was not available.

So the matter was called ahead and, again, another trial date was set. This time the trial was set for July 14 and 15, 2014. [ 12 ] At the end of May 2014, the matter was called ahead by Mr. Waddington. He requested an adjournment because of an issue with his schedule. He was to be on holidays on those trial dates. Again, the adjournment was granted. Mr. Waddington and his client waived delay. Accordingly, in May 2014, a new trial date was set for December 8 and 9, 2014. [ 13 ] On December 8, 2014, the matter came before me.

By the time all was said and done, we started the trial close to 10:00 a.m. and ended just before 3 p.m. because I had another case (a sentencing) set to start at 3:15 p.m. My notes, which I have shared with counsel while they were making their submissions, indicate that on that day the Regional Administrative Judge, who was scheduled to sit here at Main Street, had to travel outside Vancouver to cover for a judge who was sick.

This caused a shortage of judges in this court on the week of December 8, 2014. [ 14 ] Attempts were made to continue the Collinge matter on December 9 because I had no scheduled trials and was sitting in Court 102 which is a plea court. Regrettably, because there was no judge available to provide coverage, that could not be done. So we only proceeded with the trial for three-quarters of a day on December 8, 2014. That leads us to the continuation today. [ 15 ] I now turn to the case law. Without prejudging the matter, I have already pointed out to Mr. Waddington that the case law is somewhat against him.

I may have put it too categorically when I initially did so. Legal Principles [ 16 ] I turn to the general principles. I refer to the case of R. v. Violette , 2008 BCSC 472 , a decision of Mr. Justice Romilly. In that decision, Mr. Justice Romilly provided an excellent

summary of the overarching principles that ought to be considered by trial judges when considering requests for adjournment. I quote from paragraph 28 (omitting the citations of the cases): A trial judge has a discretion in determining whether or not to grant an adjournment requested by either the Crown or the defence . . .

That discretion must, however, be exercised judicially . . . The test for appellate review is whether the trial judge has given sufficientweight to all relevant considerations . . . In the exercise of that judicial discretion it may be prudent for trial judges to heed the words ofProwse J.A. (as he then was) in R. v.

Gilberg (1974), 1974 ALTASCAD 85 , 53 D.L.R. (3d) 441 at 457, where he wrote [and Iquote]: In reaching a decision as to whether an adjournment should be granted, the Court is bound to consider the interests of the accused, thewitnesses and the public, interests which may from time to time be in conflict.

However, all those interests must be considered and dueweight given to each, and the decision, whatever it should be, such that reasonably-minded persons would agree that it is required for theproper administration of justice. [17] The law with respect to what a judge ought to consider when a witness does not attend to give evidence is set out in Darville v.The Queen, [1956] S.C.J., S.C.J., No. 82. That is the leading case and continues to be the leading case on the conditions that mustordinarily be met in order to entitle a party to an adjournment where a witness is unavailable: (

a) the absent witness must be a material witness in the case; (

b) the party who is applying for the adjournment must not have been guilty of laches or neglect in omitting to endeavour to procurethe attendance of the witness; and (

c) there must be a reasonable expectation that the witness can be procured at the future time to which it is sought to put off the trial. [18] More recent cases have noted that the factors are not exhaustive and courts have regularly cited other examples of factors to beconsidered. For example, in R. v. G.(J.C.), (QC CA), [2004] Q.J. No. 9877, Dalphond J.A. said it was proper: . . . to consider other relevant circumstances such as the gravity of the charges, the number of previous postponements and theconsequences of a postponement for the accused. [19] In R. v.

Pittner, 2008 ONCJ 136, at paragraph 5, the court held that when the outcome of the adjournment application by reasonof an unavailable witness will determine the case, it is appropriate to expand the Darville conditions to include the prejudice to bothparties, the public interest, and the seriousness of the offence. [20] In R. v. Fahey, 2003 BCCA 548, our Court of Appeal considered a Crown request for an adjournment. In that case, the accusedwas charged with trafficking in cocaine. The Crown sought an adjournment because the undercover officer it expected to call was ill.

The trial judge requested a note from the constable's doctor indicating that she could not attend court. A note was presented, but it didnot explain the nature or extent of the illness. The trial judge was not satisfied with the note and, consequently, refused to grant anadjournment. On appeal, the court held the trial judge's decision was not well founded in law. The community required more before theCrown was precluded from prosecuting a criminal offence. A new trial was ordered. [21] In R. v. Henry, 2008 BCSC 1928, Mr. Justice Gaul also considered an adjournment request made by the accused.

In that case,starting at paragraph 22, Mr. Justice Gaul reviewed the applicable principles and the Darville criteria. He said this: 24 The legal standard applicable to discretionary decisions such as the granting of an adjournment requires a trial judge to exercisethat discretion judicially and in accordance with proper principles . . . 25 The court in Hazlewood adopted the following description of a judicially exercised discretion . . .

"according to the rules ofreason and justice, not private opinion; according to law and not humour; it is to be not arbitrary, vague and fanciful, but legal andregular; to be exercised not capriciously, but on judicial grounds and for substantial reasons". [22] In R. v. Kandola, 2012 BCSC 1012, Mr. Justice Romilly again had occasion to revisit the issue of adjournments. In that case,the defence requested the adjournment on a sentencing. Beginning at paragraph 20, Mr.

Justice Romilly reviewed the law onadjournments and cited from the decision of Dalphond J.A. mentioned earlier, noting: . . . that it is proper for a trial judge when asked for a postponement to consider other relevant [considerations] such as the gravity of thecharges, the number of previous postponements and the consequences of a postponement for the accused. Analysis [23] Having reviewed the background of this adjournment application and the law, I come to my analysis. The challenge I had incoming to a decision, a challenge which Mr.

Waddington recognized and seized upon, is that the Crown admitted in court that, if I didnot grant the adjournment, it would proceed in any event. Accordingly, although it was not quite phrased this way, the defence suggestsits objection should prevail because the Crown is not being prohibited from proceeding. The Crown said it will proceed. He also noteshis client will sustain significant prejudice.

However, as noted in Pittner, where the outcome of an adjournment application by reason ofan unavailable witness will determine the case, it is appropriate to expand the Darville conditions to include the prejudice to both parties,the public interest, and the seriousness of the offence. [24] In this case, because I have not heard the evidence, it is difficult for me to categorically conclude that the outcome of this

adjournment application will actually determine the case. The Crown has noted that the evidence of Constable Mann would put before the court evidence about what was seized at the time of the arrest. In the Crown's view, this evidence will raise very strong inferences which assist in proving its case. The Crown did not rely on Constable Stewart's expected testimony but it made it clear that, if the adjournment is granted and if Constable Stewart is back at work, it will call him. [ 25 ] In these circumstances, although I struggled in reaching my conclusion, I find it is appropriate to grant an adjournment. Mr.

Collinge, I understand this matter is causing you no end of grief. It is causing you to have additional costs. You have a monkey on your back, if I can put it that way. I am not unsympathetic to your situation. However, in my view, it is important when considering such an application, that it is not only the interest of the accused that is considered. The court has to consider the interests of both parties (the Crown is in a sense a party) as well as the public interest; see Pittner . [ 26 ] The offence with which you are charged is a very serious offence.

The Crown should not be prohibited from advancing its case because of something it could not control, namely, a sick witness. Other facts may have led to a different result, but in this case, there is a witness who became sick at the last moment. The Crown should not be precluded from putting its best case forward. Whether or not the evidence it plans to call establishes its case, remains to be seen. [ 27 ] I do not want you to think I have prejudged the conclusion or the strength of Constable Mann's evidence. However, in my view, the Crown should be allowed to present its best case.

Given this application arises because of a last-minute illness, there is no delay on the part of the Crown. It is clear Constable Mann is in hospital. There is no indication he has a terminal illness, so he should be available in the near future. For these reasons, I am granting the adjournment. I ask the parties to go to the judicial case manager and get new continuation dates. [RULING ON CROWN ADJOURNMENT APPLICATION CONCLUDED]