Monday, October 27, 2014

Adjournment because of the absence of witnesses

The test to adjourn a trial because of the absence of a witness or witnesses is set out in Darville v. The Queen, [1956] SCJ No. 82.  Unfortunately Darville is getting old and some Courts, esepcially in Ontario, hesitate to apply an older case.  R. v. Evic, 2014 NUCA 1, a decision of Justice Ronald Berger of the Alberta Court of Appeal is, accordingly, helpful. Justice Berger writes:

There was no disagreement before us as to what conditions must ordinarily be established by affidavit in order to entitle a party to an adjournment on the ground of the absence of witnesses, these being 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 in omitting to endeavour to procure the attendance of these witnesses;

(c)   that there is a reasonable expectation that the witnesses can be procured at the future time to which it is sought to put off the trial. Darville, above, at para. 13

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