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WITNESS IS NO SHOW

The leading cases in Nova Scotia and New Brunswick both adopt the Supreme Court of Canada Darville test:



Melanson v R 2005 NBQB 470


Per Savoie, J. –

[1] Mr. Melanson was charged in August 2005 with possession for the

purpose of trafficking, pursuant to s. 5(2) of the Controlled Drugs and Substances

Act. The offence is alleged to have taken place in April, 2005.

[2] When he first appeared in Provincial Court, in August, 2005, the

Crown objected to his release and he was remanded in custody.

[3] He had elected trial by Judge Alone, and on September 21, 2005,

he waived his preliminary inquiry. On September 23, 2005, and Indictment was

filed with the Court of Queen’s Bench. The Crown did not at that time, as is the

practice, notify the Court that Mr. Melanson was in custody.

...


[4] So, although Mr. Melanson was the accused, the indictment stated

that it was “ROBERT WILLIAM GOSSE” who stood charged.

[5] At the October 3, 2005 Motions Day, the trial date was scheduled

for December 15th and 16th, 2005. Mr. Melanson, who was incarcerated, was not

brought to court that day for arraignment and plea because the Court had not

been notified by the Crown that he was in custody. His lawyer was present and

did not object to the trial date.

[6] There is no record that the Crown requested to have Mr. Melanson

appear at the next Motions Day, in November, for arraignment and plea. There

is also no record that the Crown moved to amend the Indictment in order to

correct the deficiency.

[7] On December 13th, 2005, which is two days before the trial date,

the Crown wrote to the Court as follows:

“Please be advised that further to our instructions, the police officer in charge of the

above-noted matter did not send the substance seized for analysis. Since we need the

Certificate of Analyst to prove an essental (sic) element of the offence, we are requesting an adjournment of the trial. Please take note that

the accused is remained (sic) in other matters.”

[8] This letter was explained by the Crown to mean that the substance

had not been sent for analysis even though the police officer had been instructed

by the Crown to do so. Apparently, the letter also means that Mr. Melanson is

remanded on other matters.

[9] Finally, when it was time for the trial of Normand Melanson to begin, on December 15th, 2005, which was yesterday, the Indictment still read that “ROBERT WILLIAM GOSSE” was charged; Normand Melanson had never been arraigned and given an opportunity to enter a plea, and the Crown did not have any evidence to present.

[10] The Crown then moved for an adjournment and the defence moved

for an acquittal.

[11] Today, December 16th, the Court allowed the Crown to amend its

Indictment so that it would read: “NORMAND MELANSON” instead of “ROBERT

WILLIAM GOSSE”.

[12] Mr. Melanson was arraigned and he plead not guilty.

[13] The Crown was not ready for trial and moved for an adjournment.

The defense again moved for an acquittal.

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[14] In R. v. Darville, the Supreme Court of Canada held that a party

seeking an adjournment on the ground of the absence of witnesses had to

establish the following:

(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.


[15] In the present case, I am satisfied that on the whole the Crown has

been guilty of neglect and that is why it cannot present evidence today.


[16] Furthermore, it would appear that if the matter was adjourned it would not be able to proceed to trial until May or June 2006, which is five or six

months from now, and that could be an unreasonable delay.

[17] The adjournment is therefore refused and since there is no evidence, the accused is acquitted.

Jim O'Neil, LL.B.

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