R. v. King (D.G.), 2003 ABQB 452

• Judge: Watson, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: May 15, 2003
• Citations: 2003 ABQB 452;(2003), 338 A.R. 332 (QB)

R. v. King (D.G.) (2003), 338 A.R. 332 (QB)

MLB headnote and full text

Temp. Cite: [2003] A.R. TBEd. JN.019

Her Majesty the Queen (respondent) v. David Garfield King (applicant)

(Action No. 021469689U1; 2003 ABQB 452)

Indexed As: R. v. King (D.G.)

Alberta Court of Queen's Bench

Judicial District of Wetaskiwin

Watson, J.

May 15, 2003.

Summary:

An accused pleaded guilty to assault causing bodily harm. After two adjournments, the accused then entered a plea of not guilty. The Crown sought a further adjournment and a warrant for the arrest of the complainant who had not responded to a subpoena.

The Alberta Provincial Court, in a decision not reported in this series of reports, granted the adjournment and warrant. The accused applied for (1) an order in the nature of certiorari "permitting" the Court to quash the adjournment; (2) an order in the nature of certiorari permitting the Court to quash the warrant for the complainant's arrest; and (3) an order in the nature of prohibition, prohibiting the Provincial Court from proceeding with the matter.

The Alberta Court of Queen's Bench dismissed the application respecting the request for prohibition and certiorari as it related to the adjournment. The court noted that the challenge to the witness warrant was moot as the warrant had been executed and the complainant was required, as a consequence of entering into an undertaking, to appear at the trial.The court commented on the requirement for the issuance of a witness warrant under s. 698(2) of the Criminal Code.

Criminal Law - Topic 4485

Procedure - Trial - Adjournments - The accused's trial was adjourned twice - The Crown obtained a further adjournment - The accused applied for, inter alia, an order in the nature of certiorari permitting the Court to quash the adjournment and an order in the nature of prohibition prohibiting the Provincial Court from proceeding with the matter - The Alberta Court of Queen's Bench stated that the accused had to show that there was a jurisdictional default on the part of the Provincial Court in granting the adjournment, or else it could not exercise its certiorari and prohibition functions - The court was unable to discern any jurisdictional error - The court observed that it was not improper for the Provincial Court to consider the Crown's submissions for an adjournment absent an affidavit - While ordinarily an affidavit might be necessary, it was not always required - See paragraphs 14 to 31.

Criminal Law - Topic 5414

Evidence - Witnesses - Warrant for arrest of witness - Section 698(2) of the Criminal Code authorized issuing a warrant for the arrest of a material witness where it was "made to appear" that the witness would not attend in response to a subpoena or was evading service of a subpoena - The Alberta Court of Queen's Bench opined that "made to appear" referred to using hearsay evidence and other types of bases upon which a judge could be satisfied that the warrant should be granted - The test connoted a form of the balance of probabilities, but involved flexibility respecting what was admissible evidence - Where an application under s. 698(2) was ex parte and touched upon the subject's liberty, it should be complied with as strictly as possible to comport with the principles of fundamental justice - The requesting party had to be acting in the utmost good faith - There was justification for discerning a method whereby fairness could be met through other procedural safeguards - A court should be given information that was more solid than that traditionally provided so as to enable it to ensure compliance with s. 698(2) - See paragraphs to 52.

Criminal Law - Topic 7122

Extraordinary remedies - Certiorari - When available - [See Criminal Law - Topic 4485 ].

Criminal Law - Topic 7152

Extraordinary remedies - Prohibition - When available - [See Criminal Law - Topic 4485 ].

Cases Noticed:

R. v. Rahey, [1987] 1 S.C.R. 588; 75 N.R. 81; 78 N.S.R.(2d) 183; 193 A.P.R. 183; 33 C.C.C.(3d) 289; 57 C.R.(3d) 289; 39 D.L.R.(4th) 481; 33 C.R.R. 275, refd to. [para. 17, footnote 2].

Darville v. R.. [1956] S.C.R. vii; 25 C.R. 1; 116 C.C.C. 113 (S.C.C.), consd. [para. 22, footnote 3].

Cohen and Quebec (Attorney General), Re, [1979] 2 S.C.R. 305; 27 N.R. 344; 13 C.R.(3d) 36; 97 D.L.R.(3d) 193, refd to. [para. 24, footnote 4].

R. v. Domstad (L.M.) (2001), 285 A.R. 105 (Q.B.), refd to. [para. 24, footnote 5].

Canadian Broadcasting Corporation v. New Brunswick et al., [1996] 3 S.C.R. 480; 203 N.R. 169; 185 N.B.R.(2d) 81; 472 A.P.R. 81; 110 C.C.C.(3d) 193; 2 C.R.(5th) 1; 139 D.L.R.(4th) 385; 39 C.R.R.(2d) 189, refd to. [para. 27, footnote 6].

R. v. Smith (F.E.) (1993), 141 A.R. 241; 46 W.A.C. 241 (C.A.), refd to. [para. 27, footnote 6].

R. v. Chaplin (D.A.) et al., [1995] 1 S.C.R. 727; 178 N.R. 118; 162 A.R. 272; 83 W.A.C. 272; 36 C.R.(4th) 201; 27 Alta. L.R.(3d) 1; 96 C.C.C.(3d) 225; 26 C.R.R.(2d) 189, refd to. [para. 29, footnote 7].

Ruby v. Royal Canadian Mounted Police et al. (2002), 295 N.R. 353; 219 D.L.R.(4th) 385; 7 C.R.(6th) 88 (S.C.C.), refd to. [para. 40, footnote 8].

R. v. Scott, [1990] 3 S.C.R. 979; 116 N.R. 361; 43 O.A.C. 277; 61 C.C.C.(3d) 300; 2 C.R.(4th) 153; 1 C.R.R.(2d) 82, refd to. [para. 46, footnote 9].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 698(2) [para. 35].

Counsel:

D. Labrenz, for the respondent Crown;

N. Sissons (Fix and Smith Law Office), for the applicant.

On May 15, 2003, Watson, J., of the Alberta Court of Queen's Bench, Judicial District of Wetaskiwin, heard this appeal and delivered the following oral reasons for judgment.