HIS MAJESTY THE KING - v. -, 2023 SKKB 107

KING’S BENCH FOR SASKATCHEWAN Citation: 2023 SKKB 107 Date: 2023 05 29 Docket: CRM-YT-00022-2022 Judicial Centre: Yorkton BETWEEN: HIS MAJESTY THE KING - and - PETER MOTH Appearing: Darren Grindle for the Crown Peter Moth self-represented accused JUDGMENT LAYH J. MAY 29, 2023 INTRODUCTION [1] On October 9, 2020, Mr. Moth was charged with having care and control of a motor vehicle with over 80milligrams of alcohol in 100 milliliters of blood and while impaired. Trial dates in the Provincial Court were scheduled on severaloccasions but were adjourned because Mr. Moth was dealing with significant medical issues.

Eventually, a trial was set for November 2,2022 in Yorkton, Saskatchewan. Mr. Moth attended. However, just prior to the beginning of the trial and while Crown counsel waspreparing Cst. Jesse Green to testify, the constable received a dispatch call to attend at an active shooting in Melville, Saskatchewan.

Thetrial judge, referring to three requirements stated in Darville v R (1956), (SCC), 116 CCC 113 (SCC) [Darville] refusedthe Crown’s request for an adjournment. [2] The Crown appeals that decision, stating that in refusing to grant the adjournment, the judge failed tojudicially exercise her discretion under the relevant and applicable principles of law as set out by the Supreme Court of Canada inDarville. This failure, the Crown asserts, constitutes a reversible error of law. [3] I agree with the Crown’s position. A trial is ordered.

JURISDICTION [4] The Crown appeals the trial court’s decision pursuant to s. 813 of the Criminal Code, RSC 1985, c C-46. Itstates: 813 Except where otherwise provided by law …

(

b) the informant, the Attorney General or his agent in proceedings under this Part may appeal to the appeal court (

i) from an order that stays proceedings on an information or dismisses an information, (ii) against a sentence passed on a defendant, or (iii) against a verdict of not criminally responsible on account of mental disorder or unfit to stand trial… [5] While s. 813 contemplates a Crown appeal, s. 822(1) directs application of s. 686(4) which, in turn, permitsthis Court to dismiss the Crown’s appeal or allow the appeal and set aside the verdict and order a new trial. STANDARD OF REVIEW [6] The standard of review varies, dependent upon whether the appellant alleges a factual error or a legal error.

Inthe former instance, the standard of review is whether there is evidence upon which a trier of fact, properly instructed, could reasonablyreach the verdict: R v Bigsky, 2006 SKCA 145, 217 CCC (3d) 441.

In the latter instance, the standard of review is correctness, and theappellate court will intervene if the decision is not correct in law (unless, in a defence appeal, no substantial wrong or miscarriage ofjustice has occurred: R v Shepherd, 2007 SKCA 29, 218 CCC (3d) 113). [7] In this appeal, a nuanced standard of appeal applies because the decision under appeal is a discretionary order.A discretionary order engages judges’ authority to decide a matter based on their individual evaluation, so long as the decision is guidedby appropriate principles of law.

Judicial discretion recognizes that situations vary, requiring decisions to reflect unique circumstancesrather than the strict application of the law. Trial management decisions, like trial adjournments, are a matter of broad judicial discretion.Section 571 of the Criminal Code gives judges authority to adjourn trial: It states: 571.

A judge or provincial court judge acting under this Part may from time to time adjourn a trial until it is finally determined. [8] While s. 571 provides broad discretionary power, that discretion is not unlimited. [9] The Supreme Court of Canada in Elsom v Elsom, (SCC), [1989] 1 SCR 1367 [Elsom]outlined the latitude allowed judges when making discretionary orders. In Elsom, the court restored the trial judge’s decision whichunequally apportioned family assets between spouses based on factors enunciated under the legislation.

The court stated that interferencein such a discretionary order may be justified, but only if trial judges misdirect themselves or the decision is so clearly wrong as toamount to an injustice. An injustice may be found where a trial judge errs as to the facts of the case or has either considered irrelevantfactors or failed to consider relevant factors. [10] Fortunately, the Supreme Court has specifically addressed the factors that a trial judge should consider whendeciding whether to grant an adjournment when a witness, whether a Crown or defence witness, fails to attend court.

The trial judge, inthis instance, was aware of and cited this decision, now nearly 70 years old: Darville. [11] Darville has been frequently cited in situations similar to this appeal: R v Pojidaeffe, 1998 ABQB 1097, 240 AR401; R v Ash, 1993 NSCA 190, 349 APR 235; R v Voon, 1999 ABQB 129, 240 AR 142; R v Pastitchi, 2006 NLTD 1, 759 APR 250; R vDisain, 2000 SKQB 549, 201 Sask R 106; R v C.S.P., 1995 NSCA 156, 98 CCC (3d) 463; R v Aburto, 1998 ABCA 243, 219 AR 132; Rv Simpson (W.J.R.) (2000), (NS SC), 581 APR 305 (NSSC); and R v Healy, 2020 ABCA 197, 389 CCC (3d) 52. [12] Darville holds that the party seeking an adjournment because of the non-attendance of a witness must establish: 1. that the absent witnesses are material in the case; 2. that the party applying has not been guilty of laches or neglect in arranging for the attendance of the witnesses; and 3. that there is a reasonable expectation that the witnesses will attend court on the date sought by the party applying for theadjournment. [13] A trial judge’s consideration of these issues will determine whether he or she has considered irrelevant factors orhas failed to consider relevant factors.

ISSUE IN APPEAL [14] The issue in appeal is succinct: In refusing to allow the adjournment, did the trial judge, in addressing the threefactors set out in Darville, consider irrelevant factors or fail to consider relevant factors? THE TRIAL JUDGE’S DECISION [15] At the opening of court, Mr. Grindle, the Crown prosecutor, advised the trial judge, on the record, that a“serious incident [had] just occurred” and that the “main officer” who was to testify had been called out to a “shooting.” Mr. Grindle toldthe court that “someone actually got shot, at least one person, so he [Cst. Green] had to go.” After Mr.

Grindle advised the court that theCrown was seeking an adjournment, the transcript reads as follows at page T2, lines 11-41: THE COURT: We don’t have enough police officers, we have to take the ones who are scheduled to testify? MR. GRINDLE: I don’t – I don’t know.

THE COURT: All right. MR. GRINDLE: I mean, if someone get shot, I guess it’s --- it’s not a good thing. THE COURT: Well, I’m not suggesting it is. But I would’ve thought I took priority. MR. GRINDLE: Huh? THE COURT: I would have thought I took priority. MR. GRINDLE: I would probably disagree, you know, unfortunately – THE COURT: Well, you shouldn’t disagree on what I think. I assure you, that is what I think. MR. GRINDLE: I know, I’m just (INDISCERNIBLE). THE COURT: We’ll adjourn for 10 minutes, 15. MR. GRINDLE: Yeah, I don’t know. I have to figure out what’s going on, so --- yeah. Please.

THE COURT: Well, we’ll adjourn for 10 and see where you’re at. (ADJOURNMENT) [16] After the adjournment, Mr. Grindle explained that he had learned that Cst. Green was involved in an activeshooting situation where two people had already been shot and the police were still looking for the person responsible. Mr. Grindleasked for a further adjournment to 11:00 a.m. When the court reconvened, Mr. Grindle provided further details. He explained that earlierthat morning while he was interviewing Cst. Green, the officer received a call to attend to an active shooting in Melville. Mr.

Grindleexplained that a 911 call was active and the police were receiving numerous calls respecting possible suspects. Officers were activelysearching for suspects. Mr. Grindle reported that two persons had been shot, one killed and one injured. Two armed persons “were on therun.” Several officers had been called, including major crimes personnel. Certain officers had to guard the scenes and others had torespond to 911 calls in search of the suspects. Mr. Grindle reported that Cst. Green did not believe he would be able to return to Yorkton,Saskatchewan for the trial that day. Mr.

Grindle again asked for an adjournment. [17] The trial judge acknowledged that the police had given priority to the call over attending at trial. She stated atpage T6, lines 22-28 of the transcript: However, I do also acknowledge, from Mr. Moth’s perspective, that’s cold comfort, that the officer and the police have made a choice.And it may well be the reasonable choice in the circumstances, but that Mr. Moth was expecting his trial to be held today. I’ve never seen anything that’s been set for trial so often. [18] Mr. Grindle stated that the trial had been adjourned numerous times before because of Mr.

Moth’s health issues.Mr. Grindle pointed out that at the last trial date on July 6, 2022 both Crown witnesses were present, and Crown and defence counselwere present and ready for trial. Unfortunately, Mr. Moth did not appear. In response to the trial judge’s question whether the Crownwas asking for an adjournment because defence counsel had been allowed multiple requests for adjournment, Mr. Grindle answered atpage T7, lines 27-32 of the transcript: No. I mean, I don’t think I take – I mean, I’d suggest this is an exceptional circumstance.

It’s not a situation where the officer is sick orhad to go to a medical appointment or just made a decision a day before trial that he had to do something different. It’s a situation wherehe’s called out because of a serious incident and it’s not – it’s a situation where – you can’t plan for it and --- [19] The trial judge, after asking counsel if they could offer insight whether this issue had previously arisen,identified the decision in Darville. The following exchange then occurred at page T9, lines 2-9 of the transcript: MR. GRINDLE: I mean, and I think for the Crown, he [Cst.

Green], he did show up for the subpoena. It’s not like he didn’t showup. He was present. THE COURT: Well, yes. He showed up and left. MR. GRINDLE: I know, but – I know. THE COURT: I’m not sure that that makes it better, Mr. Grindle. [20] The trial judge then adjourned for 15 minutes. Upon her return, she stated that she was satisfied that the Crownhad established the first and third parts of the Darville test. She questioned, though, whether the second test had been triggered: whetherthe party requesting the adjournment was guilty of laches or neglect.

She paraphrased R v G.(J.C.) (2004), (QC CA),189 CCC (3d) 1 (Que CA) [G.(J.C.)], a decision of the Quebec Court of Appeal as indicating that the list of factors set out in Darvillewas not exhaustive. She read into the record at page T11, lines 33-39: Specifically, the Court may also consider other relevant circumstances, such as the gravity of the charges, the number of previouspostponements, and the consequences of a postponement for the accused.

Ultimately, the decision whether to grant the adjournmentmust be made in light of the realities of each case and shall be consistent with the interests of justice. [21] The trial judge then applied the statement of law in Darville and G.(J.C.) and concluded as follows at page T12,

lines 17-28: So those are the considerations I – I have. If this were to be adjourned to another date, we would be looking likely at the month ofFebruary. This has been an exceedingly long and drawn-out process, certainly, no – through no fault of the Crown. But the question is, is this a serious enough charge, and is there no prejudice to the accused? And it is my determination that there isprejudice to the accused. That this is not a minor charge, but neither is it a terribly serious one.

And in the circumstances, if the Crown cannot proceed today, it will be dismissed. and I believe the Crown has acknowledged that is thecase. And so, it’s dismissed for want of prosecution. [22] Having already accepted that the first and third factors of Darville were satisfied, the above analysis constitutesthe trial judge’s assessment of the second Darville factor. ANALYSIS [23] At first glance, one might think that the trial judge did not address the second Darville factor, whether theCrown was guilty of laches or neglect in arranging Cst. Green’s attendance. However, indeed she did when she stated Mr.

Moth’sprosecution “has been an exceedingly long and drawn-out process, certainly, no – through no fault of the Crown.” [Emphasis added]Accordingly, the trial judge found all three of the Darville factors satisfied but nonetheless did not grant the adjournment. [24] I agree that factors in addition to those stated in Darville might be considered when adjournments are requestedby either party. Darville, though, is specific to adjournments requested because of the non-attendance of a witness. Minimally, the courtmust address and consider the factors in Darville.

Albeit, in other instances of requests for adjournments – late disclosure, counsel’sschedules, illness, road conditions – a broader range of factors might be engaged. [25] The trial judge focused on two circumstances, neither of which are part of the Darville factors. She consideredwhether the charges against Mr. Moth were a “serious charge” and whether there was any prejudice to Mr. Moth.

Respecting theseriousness of the charge, she found that the impaired driving charge, although not minor, was not terribly serious. [26] To the extent that seriousness of the charge is a legitimate factor to consider, impaired driving has beenfrequently described as a scourge. The Supreme Court of Canada, as recently as two months ago, in R v McColman, 2023 SCC 8, 423CCC (3d) 423 stated: [72] Second, impaired driving is a serious offence. This Court has recognized that society has a vital interest in combatting drinkingand driving.

In R v Bernshaw, (SCC), [1995] 1 S.C.R. 254, at para. 16, Cory J. noted: Every year, drunk driving leaves a terrible trail of death, injury, heartbreak and destruction. From the point of view of numbers alone, ithas a far greater impact on Canadian society than any other crime. In terms of the deaths and serious injuries resulting in hospitalization,drunk driving is clearly the crime which causes the most significant social loss to the county. … [27] Aside from the seriousness of the charge, the trial judge concluded that Mr. Moth would be prejudiced by athree month adjournment to February.

However, she neither received nor cited any particular evidence of prejudice to Mr. Moth. Indeed,the record shows that several adjournments had been made at Mr. Moth’s behest over the two year period from the laying of theInformation to the trial. Indeed, his own failure to attend the July 6, 2022 trial occasioned an adjournment of four months and a fine of$100 for his failure to appear. CONCLUSION [28] The appeal is granted. A new trial is ordered. J. D.H. LAYH