The Discretion of a Judge to Grant an Adjournment

At common law, the authority of a court to grant an adjournment exists for both superior courts and inferior courts within the jurisdiction of the court to control its own process.  

           Figliola v. Ontario (Director, Family Responsibility Office), 2009 ONCJ 275, at paras. 27, 28.

The decision to grant or not to grant an adjournment is a matter that is within the discretion of any trial judge.  

           R. v. Patel, 2018 ONCA 541, at para. 3

          See R. v. Violette, 2008 BCSC 472 (CanLII);

            Manhas v. The Queen, [1980] 1 SCR 591, 1980 CanLII 172 (SCC). 

The test for appellate review of the exercise of judicial discretion is whether the judge at first instance has given sufficient weight to all relevant considerations.

Reza v. Canada, 1994 CanLII 91 (SCC).

 

The constitutional rights of the accused must be balanced against  the trial judge’s right to control the trial process, a right that includes a wide discretion to grant and refuse adjournments.   An appellate court should only interfere with a trial judge's refusal to grant an adjournment if it deprives an accused of a fair trial or the appearance of a fair trial.

                R. v. Hazout, 2005 CanLII 30050 (ON CA).

It may be prudent for trial judges to heed the words of Prowse J.A. in R. v. Gilbert (1974) ALTASCAD 85 (CanLII):

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 should be, such that reasonably-minded persons would agree that it is required for the proper administration of justice.

R. v. Gilbert (1974) ALTASCAD 85 (CanLII), per Prowse J.A. 

Failure of a Material Witness to Attend

The law with respect to what a judge ought to consider when a witness does not attend to give evidence is set out in Darville v. The Queen, [1956] S.C.J., S.C.J., No. 82.  For a detailed discussion, see my December 2016 blog post “Adjourning the Trial When a Witness Fails to Attend”.

Adjournment & Right to Counsel 

As important as the right to counsel is, it is not an unlimited right.  It must be balanced against the timely disposition of cases.  There comes a point at which the court is entitled to refuse any further adjournments for the purpose of retaining counsel.  

            R. v. Patel, 2018 ONCA 541, at para. 3; 

        See also R. v. McCallen, 1999 CanLII 3685 (ON CA).

  

Criminal Code Adjournments

The Criminal Code is not silent on adjournments.  However, where the Criminal Code does specifically permit a court to grant an adjournment, the decision to do so, as it is at common law, is within the discretion of the court. [FN]

Below is a non-exhaustive list of Criminal Code provisions dealing with adjournments.

s.824	Part XXVII--Summary Convictions	Summary conviction appeal	The appeal court may adjourn the hearing of an appeal from time to time as may be necessary.
s. 803(1)	Part XXVII--Summary Convictions	Summary conviction	The summary conviction court may, in its discretion, before or during the trial, adjourn the trial to a time and place to be appointed and stated in the presence of the parties or their counsel or agents.
800(2)	Part XXVII--Summary Conviction	Summary conviction--Personal appearance of accused required	A defendant may appear personally or by counsel or agent, but the summary conviction court may require the defendant to appear personally and may, if it thinks fit, issue a warrant in Form 7 for the arrest of the defendant and adjourn the trial to await his appearance pursuant thereto.
742.6 (3.3)	Part XXIII-Sentencing	Procedure on breach of condition of a conditional sentence order	A judge may, at any time during a hearing of an allegation of breach of condition, adjourn the hearing for a reasonable period.
s. 645(2)	Part XX--Jury Trials	Jury trial	A judge may adjourn a trial from time to time in the same sittings.
s. 606(3)	Part XX--Jury Trials	Pleas, etc.	An accused is not entitled as of right to have his trial postponed but the court may, if it considers that the accused should be allowed further time to plead, move to quash or prepare for his defence or for any other reason, adjourn the trial to a later time in the session or sittings of the court, or to the next of any subsequent session or sittings of the court, on such terms as the court considers proper.
s. 601(5)	Part XX--Jury Trials	Adjournment if accused prejudiced/misled by variance, error or omission on the indictment.	Where, in the opinion of the court, the accused has been misled or prejudiced in his defence by a variance, error or omission in an indictment or a count therein, the court may, if it is of the opinion that the misleading or prejudice may be removed by an adjournment, adjourn the proceedings to a specified day or sittings of the court and may make such an order with respect to the payment of costs resulting from the necessity for amendment as it considers desirable.
s.571	Part XIX--Trial Without a Jury		A judge or provincial court judge acting under this Part may from time to time adjourn a trial until it is finally terminated.
520(4)	Part XVI--Compelling Appearance	Bail Review	A judge may, before or at any time during the hearing of an application under this section, on application by the prosecutor or the accused, adjourn the proceedings, but if the accused is in custody no adjournment shall be for more than three clear days except with the consent of the accused.
516(1)	Part XVI--Compelling Appearance	Bail Hearing	A justice may, before or at any time during the course of any proceedings under section 515, on application by the prosecutor or the accused, adjourn the proceedings and remand the accused to custody in prison by warrant in Form 19, but no adjournment shall be for more than three clear days except with the consent of the accused.
475(1)(ii)	Part XIV--Jurisdiction	Accused absconding during trial	Notwithstanding any other provision of this Act, where an accused…absconds during the course of his trial…the court may...if a warrant in Form 7 is issued for the arrest of the accused, adjourn the trial to await his appearance.

Jurisdiction over an offence is not lost by reason of the failure of any court, judge, provincial court judge or justice to comply with any of the provisions of the Criminal Code respecting adjournments or remands.

See section 485 (1), Criminal Code.

FN: though some provisions, such as 516(1), limit the duration of the adjournment.

Written by Stuart O’Connell, O’Connell Law Group, Toronto.

Tel: 416-628-1942

(All rights reserved to author)