Territorial Court
Decision Information
Decision information:
Abstract: Transcript of Ruling on Adjournment Application
Decision Content
2009 NWTTC 17 T-1-CR-2009000376
IN THE TERRITORIAL COURT OF THE NORTHWEST TERRITORIES
IN THE MATTER OF:
HER MAJESTY THE QUEEN
- and -
CRAIG MacNEARNEY
and
KIM MacNEARNEY
_____________________________________________________
Transcript of Ruling on Adjournment Application
delivered by the Honourable Chief Judge R.D. Gorin,
sitting at Yellowknife, in the Northwest Territories,
on November 23rd, A.D. 2009.
_____________________________________________________
APPEARANCES:
Ms. D. Vaillancourt: Counsel for the Crown
Mr. J. Bran: Counsel for Craig MacNearney
Mr. N. Homberg: Counsel for Kim MacNearney
(Charges under s. 5(2), 7 CDSA)
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1 THE COURT: The Defence applies for an
2 adjournment of the Preliminary Inquiry which was
3 set to today's date.
4 There have been a number of past appearances
5 in this matter. It appears that the matter was
6 first set for Preliminary Inquiry on July the
7 7th. A full day was estimated as the time which
8 would be required. I was the judge who set the
9 matter to July the 7th. On July 7th I adjourned
10 the matter over at the request of Defence counsel
11 to today's date. The matter was adjourned
12 because Defence was not prepared to proceed, but
13 also because there were a large number of
14 witnesses who the Crown anticipated calling.
15 That was the reason for the lengthy adjournment
16 to today's date and the reason why two days have
17 actually been set aside.
18 I look at the notice of issues and witnesses
19 which has been filed in this case. No notice, as
20 required in the Criminal Code, had been filed
21 before the 19th of November, 2009. So the actual
22 notice comes at the 11th hour.
23 Section 536.3 of the Criminal Code states
24 that:
25 If a request for a preliminary
26 inquiry is made, the prosecutor or,
27 if the request was made by the
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1 accused, counsel for the accused
2 shall, within the period fixed by
3 rules of court made under section
4 482 or 482.1 or, if there are no
5 such rules, by the justice, provide
6 the court and the other party with a
7 statement that identifies
8 (a) the issues on which the
9 requesting party wants evidence to
10 be given at the inquiry; and
11 (b) the witnesses that the
12 requesting party wants to hear at
13 the inquiry.
14 In this case, the notice filed by Mr. Bran on the
15 19th day of November states that:
16 The following matters are in issue
17 at the Preliminary Hearing:
18 (a) mens rea of the offence
19 that is, the criminal intent; and
20 (b) actus reus of the offence.
21 I will take that to mean the offences, because
22 there are actually two offences charged in both
23 instances, and a list of 13 witnesses follows.
24 Mr. Bran concedes that the notice does not
25 legally require the Crown to call these
26 witnesses. It does not bind the Court. It
27 simply advises the witnesses that the requesting
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1 party, in this case Mr. Bran's client, wants to
2 hear at the inquiry.
3 I think that if Mr. Bran wanted to hear from
4 all of these witnesses and wanted to ensure that
5 these witnesses were called either by the Crown
6 or himself, he should have subpoenaed them. My
7 understanding, based on the submissions of
8 counsel, is that there was no express undertaking
9 by the Crown that all of these witnesses would be
10 called. The matter may have been adjourned over
11 to today's date so that all of those witnesses
12 might be available, but the Crown has the
13 discretion as to which witnesses it calls at a
14 Preliminary Inquiry. 536.3 of the Criminal Code
15 does not change that.
16 As I have said, there was no express
17 undertaking. The case law in this jurisdiction
18 clearly establishes that one of the reasons for a
19 Preliminary Inquiry is to allow the accused
20 discovery of the Crown's case, but, at the same
21 time, that purpose does not obligate the Crown to
22 call witnesses from whom Defence wishes to hear.
23 The application for an adjournment is denied.
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1 Certified to be a true and
accurate transcript pursuant
2 to Rules 723 and 724 of the
Supreme Court Rules.
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Jill MacDonald, RMR
6 Court Reporter
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