1993 S.H. 93‑4201 IN THE SUPREME COURT OF NOVA SCOTIA IN THE MATTER OF: An Application by JOSEPH GLENN JESSOME for an order to Quash thee Order of His Honour Judge Ross B. Archibald on July 5, 1993; BETWEEN: JOSEPH GLENN JESSOME and THE ATTORNEY GENERAL FOR THE PROVINCE OF NOVA SCOTIA FOR HER MAJESTY THE QUEEN. BEING NOTIFIED PURSUANT TO THE REQUIREMENT OF RULE 58.03 OF THE CIVIL PROCEDURE RULES (N.S.) Respondent HEARD: At Halifax, Nova Scotia before The Honourable Justice Edward Scanlan, in Chambers, November 17, 1993 DECISION: November 17, 1993 WRITTEN RELEASE OF ORAL DECISION: COUNSEL: Daniel Graham, Esq., and Cathy Benton, for the Applicant Donald Presse, Esq., for the Respondent Scanlan, J. (Orally) First of all, would like to thank counsel for the assistance they have rendered to the court by way of briefs and submissions and the case law that has been provided to me. It has been of great assistance. The applicant here is requesting an order of prohibition and certiorari directing that Judge Archibald and any other provincial court judge cannot hear the trial The Queen v. Joseph Glenn Jessome. The affidavit of Mr. Graham sets out the history of the case leading up to July 5, 1993, when the adjournment complained of was granted. For the record, refer to paragraphs to 10 of that affidavit: 4. On March 2. 1993, the Applicant elected to be tried in Provincial Court. He plead not guilty and trial date was set for July 6, 1992. 5. In late April of 1993 contacted Darrell Martin of the Crown Attorney's office and informed him that potential defence witness would not be available to appear for the originally set date of July 6, 1993 because she was living in New Brunswick. 6. On May 3, 1993, Mr. Martin and appeared before Judge Sherar and agreed upon an earlier trial date of May 21, 1993. 7. On or about May 14, 1993, Mr. Martin advised me that he would not be able to procure the attendance of the alleged victim, Mr. Herbert, for May 21, 1993, as he was living in New Brunswick. 8. On May 21, 1993, the matter was set over to May 25, 1993. 9. On May 25, 1993, the parties again appeared before Judge Sherar and agreed on new trial date of July 5, 1993. 10. On July 5, 1993, the parties appeared before His Honour Judge Ross Archibald for trial. The Crown was represented by Don Presse. Mr. Presse sought an adjournment of the trial because it had been unable to procure the attendence of Mr. Herbert from New Brunswick. No affidavit was filed the court on behalf of the Crown. The affidavit of Mr. Graham sets out the history as have just indicated. It is important as well that review the facts as presented to the trial judge. refer now to page of the transcript and read in part: ...on May 3rd, at Defense request, the matter was brought into Court and they moved the trial ahead to May 21st. However, after in the meantime the victim had moved to New Brunswick and he was not able to make arrangements to be down here in short of time. ...the matter was put over to May 25th this date was set. Now understand from the police officer that shortly after this date was set, he had made request in the Court office for an out-of-town subpoeona for the victim. It goes on: ...the order was taken out but the order was only taken out on June 28th of 1993. It was only signed by Mr. Justice Goodfellow for the out-of-town subpoena. The subpoena was then couriered up to New Brunswick, Chatham Police. They attempted to serve Mr. Herbert, the victim in this case, on Thursday and Friday. They contacted me on Friday and said they couldn’t get him because he had gone camping in Fredericton and there was no his family indicated they had no phone number and did not know where he was. It turned out that Mr. Herbert actually learned of the trial on the Sunday afternoon and he was not able to attend. Mr. Graham, in his submissions, has referred me to the case of The Queen v. Casey 80 N.S.R. (2d) 249. The Casey case refers to Darville v. The Queen (1956), 1956 CanLII 463 (SCC), 116 C.C.C. 113, which sets out three‑part test to be met before an adjournment can be granted. refer to those tests at set out at page 249 of the Casey case: (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 reasonable expectation that the witnesses can be procured at the future time to which it is sought to put off the trial. In essence, the applicant here indicates that it is really only on the second ground that they challenge the adjournment. The learned trial judge indicated that he was familiar with the Casey case, and he mentioned that in his decision. The trial judge indicated, in his words, ...the Crown has attempted to co‑operate with the Defence in setting dates and co‑operated to the extent that they apparently fumbled on one of the subpoenas. The trial judge granted the adjournment. The preliminary issue raised by the Crown is as to whether or not the extraordinary remedies of prerogative writ, in this case certiorari and an order of prohibition, is in fact and appropriate remedy. refer to Section 669.1, subsection (2) of the Criminal Code: Any court, judge or provincial court judge having jurisdiction to try an accused or defendant, or any clerk or any 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. The Crown has also referred me to Section 571 of the Code. Clearly, it is within the jurisdiction or power of the trial judge to deal with the issue of adjournments in accordance with the relevant sections of the Code. The applicant’s position is that if there is an error in law in exercising that discretion and if the error is so substantial that it results in denial of natural justice, then it gives rise to the right to seek the assistance of the prerogative writ. refer to the case of The Queen v. Gray 1991 CanLII 7130 (ON SC), 68 C.C.C. (3d) 193, decision of the Ontario Court (General Division), Justice Watt, 1991, at page 204, It is as well to recall at the outset that it is the burden of the applicant to establish jurisdictional error by the learned Provincial Court judge in the conduct of the s.16(3) inquiry. Absent its adequate demonstration, the applicant is disentitled to the extraordinary remedy which here he seeks. The judge goes on to say, and emphasize, Jurisdictional error is not to be equated with error of law. By jurisdiction is meant the authority to decide case, to determine an issue. Its essence is the authority to determine the issue, not the nature or correctness, actual or perceived, of the determination made... also refer to the additional comments by Justice Watt, also at page 204. It has often and rightly been said that, in matter within its jurisdiction, court of limited jurisdiction may misconstrue statute (other than an enabling statute) or otherwise mis‑decide the law as freely and with as high an immunity from correction, except on appeal, as any other judge or court. refer also to the case of Re Skogman and The Queen 1984 CanLII 22 (SCC), 13 C.C.C.(3d), 161, and specifically the comments of Justice Estey at page 167: It need only be added by way of emphasis that such certiorari review does not authorize superior court to reach inside the functioning of the statutory tribunal for the purpose of challenging decision reached by that tribunal within its assigned jurisdiction on the ground that the tribunal committed an error of law in reaching that decision, or reached conclusion different from that which the reviewing tribunal might have reached. I hold that the decision as to whether or not to grant an adjournment was within the jurisdiction of the judge and that any decision in that regard was an exercise of his discretion within that authority. He had the right to exercise the discretion and the right to be wrong. If there is any remedy, it is by way of appeal, not by way of prerogative writ. would go on to say that even if am wrong in that holding, that note again that the trial judge indicated that he was familiar with the principles as enunciated in the Casey decision. am not satisfied that he erred at law or that there was any denial of natural justice resulting from his decision to grant the adjournment. The sequence of events leading up to the adjournment provided an adequate basis upon which the judge could exercise his discretion in favour of granting the adjournment. There was sufficient material before the court upon which the court could satisfy itself that the second test as set out in Darville was met. Again I note that the applicant concedes that the second test of neglect or laches is the main basis of his application. One final matter that would note is the suggestion that the decision had to be based on affidavit evidence, and do not accept that premise as put forth by the applicant. There have been numerous cases before the court wherein the court has made discretionary decision based on submissions of counsel. Both counsel made submissions and there was no controversy as to the events leading up to the witness not being available at the date of the trial. I would dismiss the application.
The applicant sought an order for certiorari quashing a decision of the trial judge granting an adjournment and a prohibition from hearing the trial. In earlier hearings, the Crown and applicant had each sought new trial dates to ensure procurement of witnesses for trial. The Crown sought to subpoena the victim to testify. Due to the delay in obtaining authority to serve an out of town subpoena in New Brunswick, the Crown was unable to serve the victim until three days before trial. The victim did not learn of the trial date until the day before and was unable to attend. An adjournment was granted. The applicant contended the trial judge had exceeded his jurisdiction. Dismissing the application. It is within the jurisdiction of the trial judge to deal with the issue of adjournments in accordance with the provisions of the Criminal Code. Jurisdictional error is not to be equated with error of law. Any decision to grant an adjournment is therefore within the court's proper discretion. If a remedy exists, it is by way of an appeal and not a prerogative writ. In any event, the sequence of events was sufficient to justify the granting of an adjournment. There was neither neglect nor laches on the part of the Crown.