Adjourning the Trial When a Witness Fails to Attend

OverviewApplications for a trial adjournment may be made by the Crown or the defence.  It is undisputed that whether an adjournment or a postponement should be granted or not is a discretionary matter for the trial judge: Manhas v. The Queen, 1980 CanLII 172 (SCC, [1980] 1 S.C.R. 591; R. v. Barrette, 1976 CanLII 180 (SCC), , [1977] 2 S.C.R. 121, 29 C.C.C. (2d) 189; R. v. Darville, (1956), 116 C.C.C. 113 (S.C.C.); R. v. MacDonald, 1998 CanLII 18016 (NL CA), [1998] N.J. No. 340 (QL) (C.A.) [reported 132 C.C.C. (3d) 205].The leading case governing trial adjournment applications is that of Darvillev. the Queen, (1956) 116 C.C.C. 113 (S.C.C.) which sets out a straightforward three-part test.  Though Darville remains foundational, the test has been elaborated and expanded upon and may, it appears, include such additional factors as the consideration of the public interest in having a trial on the merits (including the related consideration of the seriousness of the offences charged), and whether there would be a lack of significant prejudice to the accused.Further—in my opinion—where the defence seeks the request, the accused’s right to full answer and defence and even the right to a fair trial, section 11(d) of the Canadian Charter of Rights and Freedoms,may be engaged.  For an overview of the right to full answer and defence see R. v. Mills, [1999] 3 S.C.R. 668Trial Adjournment - The Darville Test On the elements to be considered by a judge when asked to grant an adjournment of a criminal trial due to the absence of a witness, the Supreme Court of Canada provided some guidelines in 1956 in R. v. Darville:( 1)   that the absent witnesses are material witnesses in the case;(2)   that the