R. v. Freeman, 2020 NSSC 89

SUPREME COURT OF Nova Scotia Citation: R. v. Freeman, 2020 NSSC 89 Date: 20200227 Docket: CRH 483413 Registry: Halifax Between: Her Majesty the Queen v. Cheryl Anne Freeman D E C I S I O N Judge: The Honourable Justice James L. ChipmanHeard: February 27, 2020, in Halifax, Nova ScotiaOral Decision: February 27, 2020Written Decision: March 4, 2020Counsel: Giancarla Francis, for the Applicant, Ms. Freeman Matthew R. Kennedy, for the Respondent, Provincial Crown By the Court (orally): [1] On January 17, 2019, the trial in this matter was scheduled for March 3, 4, 5 and 6, 2020 before Justice Arnold.

Over one yearlater, on February 6, 2020, Justice Arnold and counsel participated in a pre-trial telephone conference. During the on-the-record call, theCrown advised that “they and/or the police were late issuing subpoenas”. In the result the main business owner, who is the allegedvictim of the alleged fraud, will be out of the country at the start of the trial and unavailable to testify until the morning of March 6,2020.

This timing will not, in the Crown’s submission, permit sufficient time for the presently scheduled trial. [2] In the result, Justice Arnold advised the Crown to prepare a Notice for an adjournment request in Crownside and serve it onthe Court and the Defence as soon as possible. He also advised counsel that they should be prepared to address Darville v. The Queen(1956), (SCC), 116 CCC 113 (S.C.C.), the seminal Supreme Court of Canada case referable to adjournments in thecontext of late subpoenaed witnesses. [3] The matter came before me in Crownside two weeks ago.

As Defence counsel was not present, I did not release the March,2020 trial dates. Accordingly, the matter was adjourned to last week’s Crownside. The parties agreed they could conduct this trial onJuly 7, 8, 9 and 10, 2020 before Justice Rosinski; however, the Defence stated that they wished to contest the Crown’s adjournmentrequest. In the result, I did not adjourn the existing March dates but I did place a hold on the July dates pending today’s Application. [4] On February 24, 2020 the Crown submitted a letter which reads as follows: Facts I’m writing in reply to Ms. Freeman’s brief of 24 February 2020.

It appears the parties are agreed on the factual background. I wouldonly add that the Information charging Ms. Freeman with Theft over $5000 was laid on 1 March 2018 and that the presumptive Jordandeadline is therefore 1 September 2020. Law

The Crown agrees that R v Darville applies and the second branch of the test is the important factor. Carl Launt is a material witness.The Crown expects that Mr Launt will attend court to testify on 6 March 2020 or on a later date if the trial is adjourned. The question forthe court is whether the Crown has been guilty of laches or neglect in arranging for his attendance.

Further to that, however, the Crown submits that it is open to this court to consider all of the relevant circumstances and that “thedecision whether or not to grant the adjournment must be made in the light of the realities of each case and shall be consistent with theinterests of justice.” R v G(JC), (QC CA), [2004] QJ No 9877 at para. 13. Analysis It is acknowledged that the current trial dates were scheduled on 17 January 2019. Police served Mr Launt his subpoena threehundred and eighty-five days later – on 6 February 2020.

The Crown does not have reason to believe that police made earlier attempts toeffect service that were unsuccessful. Nor does the Crown contend that it was difficult to locate Mr Launt. Mr Launt was served his subpoena twenty-six days before the trial is scheduled to begin. In some cases, twenty-six days beforetrial may not be considered “late service.” However, given the amount of time that elapsed from the date the trial was scheduled, theCrown has to concede that Mr Launt’s subpoena was served relatively late. There is no question that a delay of just over a year is a significant amount of time.

There is no question that had Mr Launt beenserved his subpoena earlier, the Crown would not need to seek additional court time or an adjournment on the eve of the trial. That said, there are other relevant considerations. The decision in R v G(JC), (QC CA), [2004] QJ No 9877, has beencited often for the following principles: 12 Finally, I believe that it is proper for a trial judge when asked for a postponement to consider other relevant circumstances such asthe gravity of the charges, the number of previous postponements and the consequences of a postponement for the accused.

The Crown notes that Theft over $5,000 is classified as a straight indictable offence and is a serious charge. To my knowledge, therehave been no previous adjournments sought by the Crown. And finally – while the Crown acknowledges Ms. Freeman’s right to a trialwithin a reasonable time – an adjournment to July 2020 would still enable a disposition within the presumptive Jordan timeframe. [5] I note that of the dates listed in Mr. Kennedy’s letter, the trial was actually scheduled on January 17, 2019 and not on January10, 2019. [6] On February 25, 2020 the Defendant submitted her brief and authorities.

On February 26, 2020 I received the Crown’s briefand authority. Today I heard oral arguments from Ms. Francis and Mr. Kennedy. [7] In coming to my decision I have considered all of the authorities inclusive of Darville, R. v. E.O., 2016 YKTC 52, R. v.LeBlanc, 2005 NSCA 37 and R. v. G.(J.C.), (QC CA), [2004] QJ No. 9877. [8] I am of the view, as the Crown has acknowledged, that Darville applies to this situation and the second branch of the test is theimportant factor. [9] The business owner, Carl Launt, is a material witness. The Crown has said that Mr.

Launt could appear in Court on March 6,but that this would not suffice as that is the last day of trial. The Crown has said that Mr. Launt can be available on a later date upon hisreturn from Mexico if the trial is adjourned. The question for the Court is whether the Crown has been guilty of laches or neglect inarranging for his attendance. [10] I must consider all of the relevant circumstances in my decision whether or not to grant the adjournment. My decision must bemade in light of the realities of the case and shall be consistent with the interests of justice (R v.

G.(J.C.) at para. 13). [11] The current trial dates were scheduled on January 17, 2019. Police served Mr. Launt his subpoena over a year later (385 dayslater to be precise) on February 6, 2020. The Crown, by their own admission, does not have reason to believe the police made earlierunsuccessful attempts to effect service. The Crown acknowledges that it was not difficult to locate Mr. Launt. [12] Mr. Launt was served a subpoena 26 days before the trail is scheduled to start.

In some instances 26 days before trial may notbe considered late service; however, given the amount of time that elapsed from the date the trial was scheduled (back in January of2019), I am of the view that Mr. Launt’s subpoena was served relatively late. [13] There is no doubt that a delay of just over a year is a significant amount of time. There is no question that had Mr. Launt beenserved a subpoena earlier, the Crown would not need to seek additional Court time or an adjournment on the eve of the trial. [14] Justice Arnold’s

schedule does not permit more time in March beyond the four scheduled days. Having said this, there areother relevant considerations. As the Crown has submitted, the Quebec Court of Appeal decision R. v.

G.(J.C.) has often been referred tofor these principles at para. 12: 12 Finally, I believe that it is proper for a trial judge when asked for a postponement to consider other relevant circumstances such asthe gravity of the charges, the number of previous postponements and the consequences of a postponement for the accused. [15] Theft over $5,000.00 is a straight indictable offence and is regarded as a serious charge. There have been no previousadjournments sought by the Crown.

An adjournment to July of 2020 would still enable a disposition within the presumptive 30 monthJordan (2016 SCC 27 , [2016] S.C.J. 27) timeframe, which is September 1, 2020. Both sides have confirmed their availabilityfor July 7, 8, 9 and 10, 2020 in the event those dates are required. Ms. Freeman, in that circumstance, would have her trial within aperiod of four months later than presently scheduled. I am mindful of the overall passage of time for Ms. Freeman and the effect it will

have as – Ms. Francis has spoken to – in regard to her client’s personal and health situation. [ 16 ] Nevertheless, the trial in this scenario will occur just four months after the March dates. The July trial will still be in the presumptive Jordan framework of 30 months. In the result, having considered all the factors in play and the overriding interests of justice, I am of the view that the March trial dates may be vacated and replaced with the July trial dates without undue prejudice to the accused and still permitting Ms.

Freeman to have her trial within the Jordan timeframe. [ 17 ] In the circumstances, the application made on behalf of the accused is hereby dismissed. The March trial dates before Justice Arnold, March 3, 4, 5 and 6, 2020 are released. The trial will be rescheduled before Justice Rosinski to take place on July 7, 8, 9 and 10, 2020. I direct the Crown to see to it that the subpoenas are promptly issued and served on the required witnesses for the new trial dates. Chipman, J.