J.C. W. IN THE QUEEN'S BENCH JUDICIAL CENTRE OF WYNYARD BETWEEN: CURTIS BRENT SHRADER and HER MAJESTY THE QUEEN A. Kapoor for the accused Darryl Bode for the Crown JUDGMENT HALVORSON J. August 28, 1995 The accused seeks to overturn his conviction forfailing to attend court by arguing that the trial judge oughtto have accepted his excuse for not appearing. At issue iswhether the accused advanced a "lawful excuse". This is what happened. The accused was charged withan impaired driving offence. He attended court and indicated he would be retaining lawyer. The judge set return date and informed the accused he must appear personally because the Crown was proceeding by indictment. On the return date the accused did not show up, so the present charge was laid. At his trial the accused offered an explanation for his absence. Apparently, he was working on an oil rig which was an 11 hour drive from Foam Lake where his case was to be heard. His plan was to complete his shift the day before the trial and then drive to court. However, the crew for the next shift did not arrive, so he was obliged to continue working or risk losing his job. When he finally got off, it was too late to drive to Foam Lake. He therefore tried to reach his lawyer by telephone. When he was unsuccessful he called friend who eventually got in touch with the lawyer. The lawyer did not appear for the accused. According to the accused he had previously informed the lawyer of the court date. The accused's feelings are further bruised by the fact that the original impaired driving charge was eventually stayed by the Crown. In her reasoned decision, the trial judge rejectedthe accused\'s submission that he had a "lawful excuse" for notattending court. This finding is challenged on appeal. Counsel for the accused relies on comments of the Supreme Court of Canada in R. v. Holmes (1988), 41 C.C.C. (3d) 497 which indicate that "lawful excuse" includes all defences the common law considers sufficient reason to excuse person from criminal liability. Dickson C.J.C. put it this way at p. 508: "Lawful excuse" is very general term. It normally includes all of the defences which the common law considers sufficient reason to excuse person from criminal liability. It can also include excuses specific to particular offences. The word "excuse" is used in this broad meaning in s. 7(3) [now s. 8(3)] of the Criminal Code, which provides that all common law justifications and excuses continue to be available under the Code. This provision has been interpreted to mean that the common law defences are not frozen in time. They can be developed and tailored to fit changes in the law and new offences. There is no doubt that Parliament can redefine the meaning of "excuse", for example by expanding it to provide new excuses or excuses specific to particular offence, or by narrowing it to include only certain excuses. The important point is that parliament should give some indication, express or implied, that it has changed the meaning of "excuse" when it uses it in statute. Otherwise, the word will be understood to have the meaning of "excuse" under the common law and as used by s. 7(3) [now 8(3)], broad term that allows for the development of defences in relation to changes in the law and in the context of particular offences. If Parliament does not give some indication that it has assigned particular meaning to "excuse", the word will be taken to have the same meaning as "excuse" under the common law and in s. 7(3) [now s. 8(3)]. In my view Holmes does not assist the accused. Essentially, the issue of lawful excuse is fact driven. The guidelines in R. v. Andres (1982) 1979 CanLII 2238 (SK CA), W.W.R. 249 apply. To paraphrase Andres, I cannot say the finding by thetrial judge that the accused had no lawful excuse for failingto attend court, was not supported by the evidence; nor can Isay her conclusions were clearly wrong so as to make thedecision unreasonable. The appeal against conviction is dismissed. The accused's appeal against sentence was abandoned.
The accused was charged with failing to appear at his trial on a charge of impaired driving. The impaired driving charge was subsequently stayed. When the charge of failing to appear came on for trial the accused claimed a 'lawful excuse' for his failure to appear on the impaired driving charge. His excuse was that the next shift at work had failed to arrive on time and that this had made it impossible for him to get to court on time. This excuse was rejected and he was convicted. He appealed. HELD: Appeal dismissed.  1)Whether an accused has a lawful excuse is determined with reference to common law principles. It normally includes all of the defences which the common law considers sufficient reason to excuse a person from criminal liability. 2)The Court was unable to say that the finding by the trial judge that the accused had no lawful excuse for failing to attend court, was not supported by the evidence; nor could it say her conclusions were clearly wrong so as to make the decision unreasonable.