Adjournments Prejudice to the accused

The issue that arose was whether Defense may validly argue prejudice to the Accused as grounds to
oppose a Crown adjournment. Three principles of law are found in the case law:

A trial judge has wide discretion when considering whether or not to grant an adjournment (R v
Voon 1999 ABQB 129, R v Manson 2003 NSSC 98, affd 2003 NSCA 139).

In considering whether to grant an adjournment, the trial judge must consider the factors in R v
Darville, and failure to do is constitutes an error of law that is reviewable on Appeal (R. v.
Starcheski, 2005 ABCA 136, R v Manson 2003 NSSC 98, affd 2003 NSCA 139).

In addition to the Darville factors, the trial judge may consider any other relevant factors,
including prejudice to the Accused (R v Voon 1999 ABQB 129, R v Pojidaffe 1998 ABQB 1097,
R v DCH 2001 ABQB 268).

I. Alberta authority: Darville does not set out an exhaustive list of factors and prejudice to the
accused has been considered in ABQB and ABCA adjournment applications and reviews. Although
delay is a common form of prejudice cited, other forms such as restrictive conditions have also been
cited by higher court authority. This more readily allows an analogy to restrictive license
suspensions as a form of prejudice that may be considered before deciding whether to grant a
Crown adjournment application.

In R v Voon (1999 ABQB 129), Lee J stated that Darville does not set out an exhaustive list of factors the
trial judge must consider in deciding whether to grant an adjournment. At paragraph 25, Lee J states:

I read Darville v. R., supra, it was not meant to be exhaustive but rather a list of three conditions that
must ordinarily be established. Overall, I, as Trial Judge, still have the discretion to grant or refuse any
request for an adjournment as long as it is exercised in a judicial manner for appropriate reasons.

In ultimately granting the Crowns adjournment request, Lee J considered whether the Accused would be
prejudiced by the adjournment (para 28), In this case, the Accused was not in custody and that the
relatively short delay means that the accused would not suffer any material prejudice as a result of the
adjournment (para 28), and so the adjournment was granted (para 31).

In R v DCH (2001 ABQB 268) the trial judge granted a second Crown adjournment for disclosure, in
particular disclosure of a video that contained incriminating evidence. The Accused appealed to QB and
Justice Veit upheld the Trial Judges decision to grant an adjournment. In her analysis, Veit J noted that
Darville functions as a guide, not a mathematical formula (para 5). After dispensing with the Darville

factors, considered whether granting the adjournment amounts to a breach of natural justice (as argued by
defense). In considering this additional factor, Veit J cites R v Gilberg ((1974), 20 C.C.C. (2d) 356), where
the court considered whether it would be a breach of natural justice to deny an adjournment application to
the Accused, and quoted Prowse JAs dissent:

In reaching a decision as to whether an adjournment should be granted, the Court is bound to consider
the interests of the accused, the witnesses and the public, interests which may from time to time be in
conflict. However, all those interests must be considered and due weight given to each, and the decision,
whatever it be, should be such that reasonably-minded persons would agree that it was required for the
proper administration of justice.)

In R v Pojidaffe (1998 ABQB 1097), a Crown material witness unable to attend trial date. Justice Veit
found that the Crown was guilty of latches for not subpoenaing the witness in a timely manner (para 12).
After Veit J went through the Darville factors, she also considered whether there were any other factors
that should be taken into account in considering the adjournment application (see para 13). Although
Justice Veit did not explicitly state that she was considering prejudice to the Accused in her analysis, she
weighed the fact that the Accused was not in custody against the Accuseds lack of a criminal record, the
simplicity of the evidence, and the delay that has already been incurred and will be further incurred if an
adjournment is granted (para 12). Justice Veit found that it is it is the Accuseds interest to have the matter
heard as soon as possible, and the adjournment was denied (para 14).

In R. v. Dang, 2005 ABCA 441, the trial judge denied defense application for an adjournment due to a
defense witness being hospitalized and unable to attend the trial date. The Judge found that the witness
was not material pursuant to Darville, and denied the application. Defense appealed on the basis that the
decision not to grant the adjournment prejudices the Accuseds right to full answer and defense. In its
analysis, the Court of Appeal found that the test in Darville had been met by defense, and went further
and considered whether there would be ensuing prejudice to defense or the Crown. In this case, since it
was a defense adjournment there could not have been prejudice to the Accused (although the trial judge
found that there would be prejudice), and no prejudice was alleged by the Crown (para 16).

In R. v. Starcheski, 2005 ABCA 136, the accused was charged with impaired driving and dangerous
driving causing bodily harm. Both demand and warrant blood was taken, and two separate voir dires were
to be conducted for the demand and warrant blood. When the demand blood was excluded at the
conclusion of voir dire 1, the Crown applied for an adjournment to deal with the warrant blood, which
was denied by the trial judge. The Court of Appeal allowed the Crowns appeal and sent the matter back
to PC, on the basis that the TJ should have followed the guidelines in Darville, even though, strictly
speaking, Darville is not completely applicable to the facts of this case (para 36). When considering the
defense argument, that the Accused is prejudiced by the adjournment, the Court of Appeal found that
defense was put on notice at the outset that the Crown would require two separate voir dires and the time
that this would take (para 40), and so could not argue prejudice. However, the Court did not take any

issue with defenses ability to argue prejudice to the Accused when contesting the Crowns adjournment
application, only that in this case, there could not be any prejudice suffered.

II. Out of province authority: With the exception of the SKQB case R v Disdain (cited below), all
out-of province authority considers prejudice to the accused to be a valid consideration when
assessing whether an adjournment should be granted

In R v Manson (2003 NSSC 98, affd 2003 NSCA 139), the trial judge dismissed the charges against the
accused on the basis of prejudice (delay and breaking up the cross-examination of the complainant), and
did not consider the factors in Darville (para 9-10). The SCA Justice found that the failure to consider
Darville was an error in law, and ordered a new trial (para 14). However, the SCA Justice did not rule that
it was inappropriate to consider prejudice. Justice Wright noted that the trial judge has wide discretion
when deciding whether to grant an adjournment (para 6), however in this case, there prejudice to the
accused, although argued, was not demonstrated by defense (para 14).

In R v Pittner (2008 ONCJ 136), the trial judge denied the Crown application to adjourn the trial due to
the absence of witnesses. Along with the Darville factors, the trial judge also considered prejudice as an
independent factor. In this case, prejudice to both the Accued and the public in having the case tried on its
merits was considered, and since prejudice to the accused was significant in relation to delay and possible
bail revocation, the Crown application was denied (para 17).

In R v J.D. (2013 BCPC 147), in denying the Crowns adjournment request (para 7), the trial judge
considered the test in Darville, and also a number of other factors including the prejudice to the Accused
that would result were an adjournment granted. In this case, the young accused was subject to restrictive
bail conditions that would continue. Additionally, there were problems with the Crowns case, and the
trial judge noted that prejudice would result to any accused person in circumstances where the Crown's
case has some holes that need to be patched up and it seeks an adjournment in order to patch those holes
(para 25).

In contrast, in R v Disdain (2000 SKQB 549), Justice Laing denied the Crowns application for an
adjournment of the trial date after finding the test in Darville was not met (para 8). In paragraph 9, Laing
J decided that prejudice to the accused was NOT a factor to take into account when considering the
Darville test, and would be applicable in Charter application if there were one before the court (para 9).
Note: Disdain is not cited or followed by any subsequent cases