R. v. Bird, (1984) 34 Sask.R. 55 (CA)

• Judge: Bayda, C.J.S., Hall and Vancise, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: May 08, 1984
• Jurisdiction: Saskatchewan
• Citations: (1984), 34 Sask.R. 55 (CA)

R. v. Bird (1984), 34 Sask.R. 55 (CA)

MLB headnote and full text

R. v. Bird

(No. 1464)

Indexed As: R. v. Bird

Saskatchewan Court of Appeal

Bayda, C.J.S., Hall and Vancise, JJ.A.

May 8, 1984.

Summary:

The accused was charged with driving while having an excessive blood-alcohol content. The trial judge acquitted the accused on the ground that he was not given an opportunity to telephone his lawyer contrary to s. 10(b) of the Canadian Charter of Rights and Freedoms. After the accused had raised the Charter argument, the trial judge refused the Crown permission to call a rebuttal witness, because an adjournment of the trial would have been necessary. The Crown appealed on the ground that the trial judge was in error.

The Saskatchewan Court of Queen's Bench, in a decision reported in 32 Sask.R. 139, allowed the appeal and ordered a new trial. The court held that there was reason to interfere with the trial judge's refusal to adjourn. The accused applied under s. 771 of the Criminal Code of Canada for leave to appeal.

The Saskatchewan Court of Appeal refused leave.

Criminal Law - Topic 4485

Procedure - Trial - Adjournments - After a two day trial over 11 days apart, a trial judge refused an adjournment to allow the Crown to bring a rebuttal witness to court - The witness would not normally have been called and his presence became critical only after the accused raised an argument under the Canadian Charter of Rights and Freedoms - The Court of Queen's Bench held that there was sufficient reason to overturn the trial judge's refusal to adjourn, because the Crown was not required to anticipate all possible defences and witnesses - The Saskatchewan Court of Appeal agreed and refused leave to appeal.

Criminal Law - Topic 7603

Summary conviction proceedings - Appeal to a court of appeal - Question of law - What constitutes - A trial judge, in his discretion, refused to grant the Crown an adjournment to call rebuttal evidence - The accused could appeal, with leave, under s. 771 of the Criminal Code of Canada only on a "question of law alone" - The Saskatchewan Court of Appeal refused leave, because a judge's exercise of discretion was a question of mixed fact and law.

Cases Noticed:

R. v. Smith, [1983] 4 W.W.R. 717; 22 Sask.R. 250, appld. [para. 4].

Counsel:

L.J. Zatlyn, for the appellant;

C.R. Quinney, for the Crown.

This application was heard before Bayda, C.J.S., Hall and Vancise, JJ.A., of the Saskatchewan Court of Appeal on May 8, 1984, when the following decision was delivered by the Court of Appeal.