Adjournments

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General Principles

An adjournment is re-scheduling of a court proceeding, be it arraignment, plea, trial, sentencing, or otherwise.

The granting of an adjournments is at the discretion of the judge (e.g. see s.571 and 645; 669.1(2)), but in practice is a frequent occurrence.

Powers of Clerk to Adjourn on Instructions

A judge may direct a clerk to adjourn court to a subsequent day.

474
[omitted (1)]

Adjournment on instructions of judge

(2) A clerk of the court for the trial of criminal cases in any territorial division may, at any time, on the instructions of the presiding judge or another judge of the court, adjourn the court and the business of the court to a subsequent day.
R.S., 1985, c. C-46, s. 474; 1994, c. 44, s. 31.

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The procedure found in s. 474(2) cannot be extended to municipal or regulatory provisions whereby the clerk can adjourn a summary trial on behalf of the justice of the peace.

Jurisdiction to Adjourn a Matter

The statutory authority to adjourn a matter comes from different sections of the Code depending on the level of court and the class of offence charged.

Summary Offence Matters

Provincial Court Judge power to adjourn summary trial

A provincial court judge dealing with a summary matter is governed by s. 803 found in Part XXVII [Pt. XXVII – Summary Convictions (ss. 785 to 840)]:

Adjournment

803 (1) 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.

[omitted (2), (3) and (4)]
R.S., 1985, c. C-46, s. 803; 1991, c. 43, s. 9; 1994, c. 44, s. 79; 1997, c. 18, s. 112; 2008, c. 18, s. 45.

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This section permits the judge to adjourn a matter where the accused fails to appear without issuing a bench warrant.

Adjourn summary proceedings other than trial

General adjournments of summary offences is found in Part XX [Pt. XX – Procedure in Jury Trials and General Provisions (ss. 574 to 672)]:

669.1
[omitted (1) [Jurisdiction]]

Adjournment

(2) Any court, judge or provincial court judge having jurisdiction to try an accused or a defendant, or any clerk or other proper officer of the court, or in the case of an offence punishable on summary conviction, any justice, may, at any time before or after the plea of the accused or defendant is taken, adjourn the proceedings.
R.S.C. 1985, c. 27 (1st Supp.), s. 137

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Indictable Matters

Preliminary inquiry judge

A Preliminary Inquiry Judge may adjourn under s.537:

Powers of justice

537 (1) A justice acting under this Part [Pt. XVIII – Procedure on Preliminary Inquiry (ss. 535 to 551)] may

(a) adjourn an inquiry from time to time and change the place of hearing, where it appears to be desirable to do so by reason of the absence of a witness, the inability of a witness who is ill to attend at the place where the justice usually sits or for any other sufficient reason;

[omitted (1.01), (1.02), (1.1), (2), (3) and (4)]
R.S., 1985, c. C-46, s. 537; 1991, c. 43, s. 9; 1994, c. 44, s. 53; 1997, c. 18, s. 64; 2002, c. 13, s. 28; 2008, c. 18, s. 22.
[annotation(s) added]

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Provincial Court Judge or Superior Court Justices with Indictable Matters Without Jury

A provincial court judge dealing with an indictable matter or superior court justice without jury is governed by s. 571:

Adjournment of non-jury trial

571 A judge or provincial court judge acting under this Part [Pt. XIX – Indictable Offences – Trial Without a Jury (ss. 552 to 572)] may from time to time adjourn a trial until it is finally terminated.

R.S.C. 1985, c. 27 (1st Supp.), s. 203

[annotation(s) added]

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The term "judge" for the purpose of s. 571 — found in Part XIX [Pt. XIX – Indictable Offences – Trial Without a Jury (ss. 552 to 572)]—is defined in s. 552 as a superior court judge.

Superior Court Justices with Indictable Offences Triable by Jury

Adjournments of trials on indictable matters under Part XX [Pt. XX – Procedure in Jury Trials and General Provisions (ss. 574 to 672)]:

606
[omitted (1), (1.1), (1.2) and (2)]

Allowing time

(3) 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.

[omitted (4), (4.1), (4.2), (4.3), (4.4) and (5)]
R.S., 1985, c. C-46, s. 606; R.S., 1985, c. 27 (1st Supp.), s. 125; 2002, c. 13, s. 49; 2015, c. 13, s. 21.

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Any judge dealing with an indictable matter with a jury:

Trial continuous

645 (1) The trial of an accused shall proceed continuously subject to adjournment by the court.

Adjournment

(2) The judge may adjourn the trial from time to time in the same sittings.

Formal adjournment unnecessary

(3) For the purpose of subsection (2) [authority to adjourn trial], no formal adjournment of trial or entry thereof is required.

[omitted (4) and (5)]
R.S., 1985, c. C-46, s. 645; R.S., 1985, c. 27 (1st Supp.), s. 133; 1997, c. 18, s. 76; 2001, c. 32, s. 43.
[annotation(s) added]

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Clerk Authorized to Adjourn Jury Matter

Adjournment when no jury summoned

474 (1) Where the competent authority has determined that a panel of jurors is not to be summoned for a term or sittings of the court for the trial of criminal cases in any territorial division, the clerk of the court may, on the day of the opening of the term or sittings, if a judge is not present to preside over the court, adjourn the court and the business of the court to a subsequent day.
[omitted (2)]
R.S., 1985, c. C-46, s. 474; 1994, c. 44, s. 31.

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Codified Reasons to Adjourn

Non-Appearance of Prosecutor

Provincial court judge under Part XXII [Pt. XXII – Procuring Attendance (ss. 697 to 715.2)] may adjourn a matter due to non-appearance of the prosecutor:

Non-appearance of prosecutor

799 Where, in proceedings to which this Part [Pt. XXII – Procuring Attendance (ss. 697 to 715.2)] applies, the defendant appears for the trial and the prosecutor, having had due notice, does not appear, the summary conviction court may dismiss the information or may adjourn the trial to some other time on such terms as it considers proper.
R.S., c. C-34, s. 734.
[annotation(s) added]

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Problems with Charging Document

Where the accused has been misled or prejudiced by any issues found in the indictment or information, the accused may adjourn a matter. (see s. 485, 547, and 601)

Failure to Give Expert Notice

Where a party wishes to call an expert witness and did not give notice, the available remedy is an adjournment under s. 657.3 (5).

Discretion of the Judge

It is a discretionary decision on whether to grant or refuse a request for an adjournment. The discretion should be exercised judicially, giving proper reasons.

Appellate Standard Review

The decision is reviewable on the circumstances of the particular case, including the ability and quality of the accused. The question for the reviewing judge is whether sufficient weight was given to "all relevant considerations".

This exercise of discretion is afforded considerable deference.

The judge does not need to mention every factor considered.

The trial judge is not in error for failure to give full reasons so long as the record shows evidence that permits the necessary inferences to justify the decision.

Where the appeal concerns a refusal to adjourn for the accused to obtain counsel, the appellant must show that the refusal deprived the accused of full answer and defence which resulted in a miscarriage of justice.

Factors to Consider

A judge is typically not inclined to adjourn trial matters. The cost of resources to bring a matter to trial and the desire to bring a matter to a conclusion speaks to the judge's interest in having a matter proceed. This is balanced against the accused's right to a fair trial and right to be tried within a reasonable time.

Where the judge has grounds to believe that the request for an adjournment is a sham, the judge may refuse the adjournment.

The trial judge should consider all circumstances, including:

• the gravity of the charges
• the number of previous postponements
• the consequences to the Crown and accused by a postponement
• the accused criminal record as a reflection on his experience in the system
• the public interest in the orderly and expeditious administration of justice

Adjournment to Obtain Counsel

When faced with a request to adjourn to obtain counsel, the trial judge should consider whether a fair trial requires counsel given the seriousness or complexity of the charges.

The judge may also consider the "personality and skills" of the accused.

The right to retain counsel requires that the accused to act honestly and diligently.

Generally, a request should not be refused where the failure to have counsel for trial was not his fault, but rather the fault of defence counsel.

The judge has discretion to adjourn a trial on request of the accused for reason that they are not represented by counsel. The judge must consider the accused constitutional right to a fair trial. The accused nevertheless has the right to represent himself. The right to be represented by counsel must be exercised "diligently and honestly", thus they may be refused if they have not acted honestly and diligently. The accused cannot be refused where the absence of counsel is not their fault.

Exercise of Discretion

The discretion to allow an adjournment must be based on reasons well-founded in the law.

Choice to Self-Rep Not Ground of Appeal

However, an accused who chooses not to have counsel cannot appeal a conviction on the grounds of not having effective representation.

Principles

When considering whether to allow an adjournment by a self-represented accused to seek counsel, the judge should consider principles including:

• the right to counsel is not absolute;
• each application for an adjournment must be decided on its own facts;
• generally, an accused should not be refused an adjournment if the fact that he is without counsel is not his fault, but that of his counsel;
• the right of an accused to retain counsel must be exercised honestly and diligently so as not to delay a scheduled trial; and
• the scope of review by an appeal court of the exercise of the discretionary power to adjourn a scheduled trial is relatively wide as the consequences of a refusal may be to deprive an accused of his right to be represented by counsel.

Self-Represented Accused Request to Adjourn to Obtain Counsel

When faced with a request to adjourn to obtain counsel, the trial judge should consider whether a fair trial requires counsel given the seriousness or complexity of the charges.

The judge may also consider the "personality and skills" of the accused.

The right to retain counsel requires that the accused to act honestly and diligently.

Generally, a request should not be refused where the failure to have counsel for trial was not his fault, but rather the fault of defence counsel.

See a review of principles at White, supra, at para 17

Constitutional Protections

Consideration should be on whether the accused was deprived of the right to a fair trial, their right to make full answer and defence, or whether there would be a miscarriage of justice.

There is no constitutional right to state-funded trial counsel.

Factors

From these principles, the factors courts should consider include the following:

• whether the accused has failed to exercise the right to counsel honestly and diligently;
• whether granting an adjournment would inordinately delay the trial;
• opportunity to obtain with counsel;
• efforts to cooperate with counsel
• the ability of the accused to understand the documentary evidence

The Court should consider relevant the facts such as:

• whether or not there have been prior adjournments due to the unavailability of counsel and the accused was warned well in advance of trial that the trial would be proceeding on the scheduled date with or without counsel...;
• the accused’s criminal record which reflects on the accused’s degree of familiarity with the criminal justice system and legal aid programmes...;
• whether the charge against the accused is simple or complex which fact impacts on the critical question whether or not the accused can get a fair trial without counsel...;
• the public interest in the orderly and expeditious administration of justice...;
• if the accused has been refused legal aid and when the refusal was communicated to the accused.

By one authority, the consideration of all the circumstances should focus on the following questions:

• Has the accused failed to exercise the right to counsel honestly and diligently?
  • Has the accused had an adequate opportunity to obtain counsel?
  • Has the accused been warned that he or she will have to proceed with trial without counsel? Has the accused been made aware of the potential consequences of that?
  • Has Legal Aid or private counsel withdrawn or refused to represent the accused? If so, when was the accused advised of this? Keeping in mind the principles in Cunningham, does the record disclose why counsel withdrew?
  • Has the accused acted or failed to act so as to thwart the appointment of counsel? Has the accused acted in any other way to delay the proceedings?
  • Is there evidence that the absence of counsel at trial is part of an orchestrated attempt by the accused to delay the proceedings?
• Would granting an adjournment inordinately delay the trial?
  • How long has it been since the charges were laid? Is this the first scheduled date for trial? If not, how many times has the matter been postponed or adjourned since the charges were laid? Who was responsible for prior adjournments? Were any of the prior postponements due to unavailability of defence counsel?
  • Is the accused in custody? If not, what are the terms of interim release?
  • How serious is the offence with which the accused has been charged?
  • How long of an adjournment is the accused requesting? Is it reasonable in the circumstances? Would a shorter adjournment suffice?
  • When is the next available trial date? Would the accused and the Crown consent to a change in venue if that would facilitate an earlier trial date?
  • Does the accused agree that the delay brought about by the requested adjournment will not count against the s. 11(b) of the Charter right to be tried within a reasonable time?
• Would granting an adjournment potentially affect trial fairness from the Crown’s perspective?
  • Are there co-accused? Are they being tried separately? If so, when are their trials scheduled? If not, what is the co-accuseds’ position on an adjournment?
  • What is the expected duration of the trial?
  • How many witnesses is the Crown expected to call? What are their characteristics? Are any of them children? Elderly? Infirm? Experts? Will any of them require a translator?
  • Was the Crown put to subpoenaing its witnesses? Is there a real risk a witness may fail or be unable, for any reason, to testify at an adjourned trial? Is there evidence that the accused may be seeking a tactical adjournment to see if that risk materialises?
  • Where are the witnesses located? Will it be inordinately difficult for the Crown to arrange for witness attendance at a later trial date?
  • Is there a real risk that physical evidence may be lost or destroyed before trial if the matter were adjourned?
  • What, if anything, can be done to address or mitigate the consequences of an adjournment?
• Is the accused reasonably capable of making full answer and defence to the charges without the assistance of legal counsel?
  • What is the accused’s level of education and intellectual sophistication? Is the accused in good physical and mental health? What is the accused’s employment background? What level of family or other support is available to the accused?
  • Is the accused’s criminal record such that it indicates the accused would be familiar with the criminal justice system and the criminal trial process?
  • Was there a preliminary hearing? If so, what does the transcript indicate about the issues that will arise?
  • Was the matter case managed such that the legal issues have been narrowed before trial? Is there an agreed statement of facts?
  • Will the trial be lengthy, complex or legally complicated? Is the matter likely to give rise to complex or unusual points of law or of evidence or complicated defence strategies?
  • Is the accused facing multiple charges or charges with multiple lesser-included offences?
  • Is the accused in jeopardy of serving a significant incarceral term if convicted?

Diligence

The accused has an obligation to acts "diligently and honestly" in attempting to obtain counsel. Generally, an adjournment should not be denied where the circumstances were not his fault . Similarly, where it is exclusively the fault of counsel, the adjournment should be granted.

Standard of Review

The proper standard of review on appeal of this decision is one of whether the discretion was "exercised judicially", which requires asking "whether the trial judge has given sufficient weight to all relevant considerations". An appeal should not be granted for refusing an adjournment unless it can be shown that the right to full answer and defence was impacted such that there was an error in principle and amounted to a miscarriage of justice.

Other Reasons for Adjournment

Lack of Preparation

It is often expected that an adjournment will be granted where there is late arriving evidence.

Where a lawyer fails to properly prepare, an adjournment is not required as there is a breach of their duty to the court and client.

Missing witnesses

In order to adjourn a trial matter on the grounds of missing witnesses, the applicant must establish:

1. that the absent witnesses are material in the case;
2. that the party applying has not been guilty of laches or neglect in arranging for the attendance of the witnesses; and
3. that there is a reasonable expectation that the witnesses will attend court on the date sought by the party applying for the adjournment.

The judge may also consider other relevant circumstances.

Late Disclosure

A failure for the judge to grant a request for adjournment due to late disclosure can amount to an abuse of process requiring a new trial. Before ordering a new trial for refusing to adjourn on account of late disclosure, the court should consider:

1. the Crown’s assurance that disclosure was complete,
2. the timing and volume of disclosure,
3. the seriousness of the charges,
4. the requirements of a proper review procedure, and
5. the co-operative approach of defence counsel

Case Digests

• Adjournments (Cases)

See Also

• Precedent - Procedural - Adjournment