Procedure - Trials - Adjournment

Appeal by the accused from conviction for assault with a weapon and aggravated assault. The appellant argued that the trial judge erred in dismissing his application brought on the opening day of the trial for an adjournment to enable him to retain new counsel. He had discharged his prior counsel, arguing that counsel failed to follow up with certain issues. The appellant also argued that there were disclosure issues he wanted to have pursued by his new counsel and applications for Charter relief. The trial judge found that the counsel the appellant had discharged was very experienced and would have brought Charter applications if he considered them to have any merit.

HELD: Appeal allowed. New trial ordered. The trial judge erred in refusing the appellant’s application for an adjournment to retain new counsel. In refusing the application for an adjournment, the trial judge failed to properly consider relevant factors and proceeded on an erroneous assumption. There was nothing to indicate the appellant had discharged his counsel as a ploy to delay the trial and his intention to raise Charter and mental health issues increased the complexity of the trial. It was wrong for the judge to have summarily concluded that those matters lacked merit based solely on his view of defence counsel’s competence and Crown counsel’s statement that there were no outstanding disclosure issues. The appellant’s ability to make full answer and defence was impeded by the fact that he was required to proceed without counsel.