Frank & Joe's Case — Theft & Possession — Withdrawn

Between
Her Majesty the Queen, and
Frank and Joe N.

[2000] O.J. No. 5790

Ontario Court of Justice
Toronto, Ontario
Judge Kelly

Adjournment Denied:  7 January 2000
(49 paras.)

KELLY J. (orally): —

¶ 1     MR. PENNEY:  Good morning, Your Honour, Penney, initial C.  On Your Honour's left is Frank N., and on Your Honour's right is Joe N.  It is father and son.  And my name is Penney, initial C., appearing for both accused.  Thank you, Your Honour.

¶ 2     MS YORK:  Yes, what this is here, Your Honour, it is marked for a full day of trial, but I expect that Your Honour has received the various 11(b) applications that my friend has filed and sent a copy to Your Honour.  I have been in phone contact with my friend over the past week or so and I did receive his factum on Tuesday, and I didn't know if I would have enough time to be able to reply to it, but I think I can.  But, however, this morning when Mr. Penney was in my office I got a phone call from another Detective from 14 Division informing me that Detective S., who is the officer-in-charge of this case, was on his way to Kitchener because he had a death in the family.

¶ 3     Now, I spoke to Detective S. just a couple of days ago.  The information I had was he was on his way to a funeral, whether that is actually accurate or not, but he is on his way to Kitchener, there has been a death in the family.

¶ 4     When I spoke to the Detective that called, he said that Detective S. had called off all of the witnesses because, of course, he is the officer-in-charge, so there won't be anyone here today.  Of course as soon as I got off the phone I informed my friend of that, but that was just about a half an hour ago that we learned that.

¶ 5     So even if Your Honour were to say that there is no merit in my friend's application, the Crown is not ready to proceed here today.  It is the first trial date but there has been some delay.

¶ 6     THE COURT:  I take it you are asking for an adjournment?

¶ 7     MS YORK:  Well, I am, but I am content, and it is up to Your Honour totally, if Your Honour does wish the 11(b) argument, we could have the two accused arraigned and argue that, or we could simply adjourn the whole matter.

¶ 8     THE COURT:  Okay.

¶ 9     MS YORK:  I am prepared to argue the 11(b).

¶ 10     THE COURT:  Mr. Penney, what is your view?

¶ 11     MR. PENNEY:  Well, Your Honour, in terms of procedure, I am proposing that we argue ... I am opposing the adjournment application, to argue that first.  I am prepared to argue the 11(b) as well.  The problem is that if Your Honour denies the application a new trial date is going to be set, and I am going to be re-arguing it again at that time, because at that time it would be the second trial date and there would be further delay.

¶ 12     So I definitely want to oppose the application and argue that.  I am prepared to argue the 11(b) as well, but I wouldn't be...

¶ 13     THE COURT:  You are saying...

¶ 14     MR. PENNEY:  It is not that I want to be contributing to a further adjournment if my friend is successful with the adjournment application, but if the 11(b) is denied, then obviously I am going to be rearguing it two or three months down the road when the total delay is not 16 months and 18 days, it is going to be 18 to 20 months.

¶ 15     THE COURT:  It looks like it should either be adjourned or not adjourned, to tell you the truth, because of what you have just said.

¶ 16     MR. PENNEY:  Yes.  Although, I am not conceding that I am ... I think Your Honour knows what I am saying.  I am not agreeing to the adjournment in any way, I am simply suggesting that the application be denied.  So we may run into a situation where we are simply duplicating all our submissions.

¶ 17     MS YORK:   Yes, I understand what my friend is saying, and of course it makes better sense.  The Crown cannot go ahead here today, so if...

¶ 18     THE COURT:  First of all, I do appreciate getting the material a few days ago, it is very helpful.

¶ 19     MR. PENNEY:  Yes.  They hadn't been filed with the Clerks' Office, in fact.  I wanted to give it to Your Honour.  I know there is a problem sometimes getting it to Your Honour.

¶ 20     I am prepared to make submissions, Your Honour, with respect to opposing the adjournment application, if my friend has completed hers.

¶ 21     THE COURT:  I am just trying to figure out...

¶ 22     MR. PENNEY:  May I make another suggestion, Your Honour?

¶ 23     THE COURT:  You may, you may.

¶ 24     MR. PENNEY:  Your Honour, there is a third possibility.  This is the trial date, and I know counsel appeared before Your Honour on 11(b) applications and Your Honour has been hesitant to hear the application unless there has been an arraignment.  I am content that there be an arraignment ... if the adjournment application is granted ... that there be an arraignment, and that Your Honour canvass your schedule to see the next available full day for trial. Then we can argue the 11(b) on the basis of the total anticipated delay, which would be from the day of the arrest up to the next day scheduled for trial.

¶ 25     THE COURT:  I think that might be the best way to do it.  I will just get seized with the matter and then we won't have to reargue it.

¶ 26     MR. PENNEY:  That is right, and we have the court time available today to deal with it in that way.

¶ 27     THE COURT:  Yes.  So I think rather than waste today, at least we could accomplish something, hopefully.

¶ 28     Well, I suppose what we should do then is arraign your client and then do the 11(b) application, and then depending if it is successful, then it is academic, I suppose.

¶ 29     MR. PENNEY:  Well, I am suggesting, in fact, that we deal with the adjournment application first.  Because if my friend is unsuccessful with respect to that, then she has no evidence and that is the end of the matter, and if she is successful ... because really we are not going to be scheduling a new trial date, in any case, until that is successful.

¶ 30     THE COURT:  Okay.

¶ 31     MR. PENNEY:  If that is successful, then we will chose a new date in the future when we have a day. Then we will argue the 11(b). If it is successful, the time will be vacated; if not, then the matter will simply be adjourned.

¶ 32     THE COURT:  Okay.

¶ 33     MR. PENNEY:  So if my friend is...

¶ 34     THE COURT:  What is your submissions on the adjournment?

¶ 35     MR. PENNEY:  Your Honour, with respect to the adjournment, I think all the circumstances have to be taken into account, and I wouldn't even oppose this adjournment application, Your Honour, if this matter wasn't so old, number one, and, more importantly, if the officer was required to give evidence for this trial.  I understand he is the officer-in-charge, but there is a synopsis included in my materials.  The matter is not that complicated.  I don't know why the officer cancelled all the witnesses without consulting someone in the Crown's Office first.

¶ 36     But, in my submission, unless my friend can demonstrate that this officer was a material witness and was necessary for this case to proceed today, then the adjournment shouldn't be granted.  I have been in this courthouse before where the officer hadn't shown up, but the witnesses have, and the Crown has proceeded.  And if there was a material point that needed to be proved, and required the officer's evidence, I would be happy to consent and let it in.

¶ 37     I don't know exactly why the officer ... I understand why he is not here, but I don't think, Your Honour, the good reasons for his absence today don't really assist the Crown in having the matter adjourned.  Because really in terms of getting an adjournment application, my friend has to convince Your Honour the matter shouldn't proceed today, that the Crown won't be in a position to proceed today, and that there are good reasons for not proceeding.

¶ 38     And the link between the funeral and the Crown's ability to proceed, in my submission, is not as strong as it should be, especially when we take into account how old this matter is.  These people are entitled to a trial within a reasonable time.

¶ 39     And even though I am not arguing 11(b) right now, Your Honour ... it is before the court, Your Honour is, I think, at least required to take at least into account that if this matter has to go over some more time, there is going to be additional prejudice and everything else.  I think Your Honour should take all those factors into account and, without more specific information, that the application for an adjournment should be denied.

¶ 40     THE COURT:  All right, thank you.

¶ 41     MS YORK:  Well, he is the officer-in-charge, there are a number of police witnesses, as well as three civilian witnesses.  Detective S. took one of the statements from one of the witnesses, and I suppose one of the witnesses works for Wal-Mart.  There are a number of other police witnesses that the Crown could have relied on, I don't think I can say otherwise, but he is also an integral part of this case because he is the officer-in-charge.

¶ 42     Probably in hindsight, I would have said that had he consulted me in advance, I would have said "Well, have all the witnesses present except yourself and have someone else become the officer-in-charge," but, however, I was not consulted and I just got the phone call this morning when my friend was in my office.

¶ 43     So he has taken that upon himself, rightly or wrongly, but still he obviously has a very good reason for not being here, and it may have been a mistake that he cancelled the witnesses but he has done so.

¶ 44     THE COURT:  All right, thank you.

¶ 45     MS YORK:  I think Your Honour has the full...

¶ 46     THE COURT:  In deciding whether to grant an adjournment I will take into consideration the following: apparently there is a death in the family, and in my view that is a good reason not to be here.  I don't know when it took place and I don't know what opportunity there was for the officer to give anyone notice, however, these things do happen and the courts I think should try to accommodate them.

¶ 47     On the other hand, this officer is not going to be a witness, if there is anything for him to contribute.  Defence counsel has indicated he would be prepared to admit it.

¶ 48     The matter has gone on for a long time, the officer not only didn't show up himself but he took it upon himself to cancel all the witnesses.  As I recall, this is the 15th or possibly 16th court appearance that these people have made in this case, the charge is theft under.  It is a little more than a shoplifting, but it is a theft under charge.

¶ 49     In all the circumstances, I am not prepared to grant an adjournment.

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