Cite as: R. v. Casey, 1987 NSCA 15 IN THE SUPREME COURT APPEAL DIVISION Macdonald, Pace and Matthews, JJ.A. BE~'lEEN: HER ~mJESTY THE QUEEN (appellant) -and- HUGH JOSEPH CASEY (respondent) THE COURT: Appeal allowed, acquittal set aside and new trial ordered per reasons for judgment of Macdonald, J.A., Pace and Matthews, JJ.A. concurring. S.C.C. 01640
OF NOVA SCOTIA John D. Embree for the appellant Christopher Manning for the respondent Appeal Heard: October 1st, 1987 Judgment Delivered: October 9, 1987
MACDONALD, J. A. : This is a Crown appeal respondent by His Honour Judge William J. Court on a charge of causing committing an assault upon him of the Criminal Code. The alleged offence occurred on January 29, respondent was arraigned on the He elected trial in Provincial The trial was set for February 12, remanded into custody until that time. On February 12, 1987 when it became evident that the alleged Dixon was not present although he had been served with a compelling his appearance. Crown counsel then requested a warrant for Mr. Dixon I s arrest (see Code adjournment of the trial. Judge Mr. Dixon's arrest but refused to adjourn the trial and dismissed the charge against Mr. Casey. In doing so he said: "Well, the defence is here for trial. I'm going to dismiss the matter, but I'm going to issue Dixon and have him brought to court to explain his absence. I don't to bind Mr. Casey over any further in these set of circumstances. the matter against Mr. warrant for Mr. Dixon." The sole issue on this appeal is whether acted judicially in exercising his discretion to refuse to adjourn against the acquittal of the C. Atton in Provincial bodily harm to Ken Dixon in contrary to Section 245.1(1)(b) . 1987. The charge on January 30, 1987. Court and pleaded not guilty.. 1987 and the respondent was the case came on for trial_ victim of the assault Ken subpoena I( , s. 633 (1)) and asked for an Atton issued a warrant for and its ready a warrant for Mr. think it's proper I'm going to dismiss Casey and issue a Judge Atton
-2Â the case. At the outset it must as well as the accused is entitled to a trial and a fair trial" If R. v. Viger (1958), 122 C.C.C. 159 at p. 161 (Ont.C.A.). The law is clear that to grant an adjournment of a trial is a matter for the discretion of the trial judge, and that discretion will not be interfered with by an appellate court unless exercised otherwise than judicially, or without regard for proper principles ... " R. v. Johnson p. 105 (B.C.C.A.). In Barrette v. The Queen, C.C.C. (2d) 189 Mr. Justice Pigeon of the Court stated (p. 125 S.C.R., p. 193 C.C.C.): "It is true that application for adjournment is in the Judge's discretion. It is, discretion so that reviewed on appeal if it is based on reasons which are not well-founded right of review is the consequence of the exercise of discretion is that someone is deprived whether in criminal or in cjvil proceedings." In Sharp v. Wakefield Halsbury expressed what is meant discretionary power in the following terms (p. 191): "An extensive power justices in their capacity be exercisesd judicially; means when it is said to be done within the authorities that that done according to the be remembered that "the Crown the "decision whether or not it is clear that it was (1973), 11 C.C.C. (2d) 101 at [1977] 2 S.C.R. 121, 29 speaking for the majority a decision on an however, a judicial his decision may be in law. This especially wide when of his rights, et aI, [1891] A.C. 173 Lord by the jUdicial exercise of is confided to the as justices to and 'discretion' that something is discretion of the something is to be rules of reason and
-3Â justice, not according Rooke's Case (1); according not humour. It is to vague, and fanciful, but And it must be exercised to which an honest man discharge of his office himself." In Darville v. The Queen (S.C.C.) Cartwright, J. said (p. 117): "There was no disagreement as to what conditions established by affidavit in order to entitle a party to an adjournment of the absence of witnesses, 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 endeavour to procure the attendance of these witnesses; (c) that there is a that the witnesses can future time to which it is off the trial. In my respectful view, law on the part of the ~earned trial to refuse an adjournment given the appellant an if he could, that these conditions existed." In the present case Mr. wi tness in the case and in my opinion the prosecution had taken adequate steps by means of a subpoena to have at the trial. The third condition referred to Cartwright in Darville has prima facie at least as here the absent witness has In any event Crown counsel advises that the area. to private opinion: to law, and be, not arbitrary, legal and regular. wi thin the limit, competent to the ought to confine (1956), 116 C.C.C. 113 before us must ordinarily be on the ground these being in omitting to reasonable expectation be procured at the sought to put it was error in Judge without having opportunity to show, Dixon was obviously a material him in attendance by Mr. Justice been met when been served with a subpoena. Mr. Dixon is still in
-4Â In light of the principles set forth in the authorities to which I have referred it is my not exercise his discretion in the prosecution's request for effectively deprived the Crown of it's right to respondent on the merits. Judge Atton seems to have that the respondent was in custody; have permitted the prosecution time to ascertain had failed to obey the subpoena. be set the release of the respondent undertaking to appear or otherwise In any event it is my opinion Crown counsel should have been granted the adjournment he sought and no good and sufficient reason in justify Judge Atton's refusal to grant the adjournment. In consequence of the appeal, set aside the verdict of acquittal matter be remitted to the Provincial merits. Concurred in: Pace, J.A. ~~
Matthews, J., A/4~/opinion that Judge Atton did a judicial way when he refused an adjournment. He thereby a trial of the been influenced by the fact however he surely could why Mr. Dixon If a new trial date had to on bailor on his own could have been considered. on the facts of this case that law has been advanced to foregoing I would allow this and order that the Court for trial on the J.A.
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