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CRIMINAL PROCEEDINGS: What happens when your witness is not available or the venue is prejudicial?

Pre-trial applications are becoming more and more important by the day and can last far longer than the trial itself. In pre-trial applications, counsel set the parameters of the trial and deal with some of the most hotly contested issues in the case, thus determining matters ranging from when, and if at all, the trial will proceed to the nature of the evidence to be heard.  A key part of any trial strategy, the motions intended to be moved at an early stage in the case is to be thought out, and knowledge of the procedural requirements for bringing the various motions is essential in order to secure a successful outcome. In pre-trial motions, timing is crucial because the objective of criminal procedure is to move a case steadily forward to its conclusion so as to comply with the constitutional requirement of a trial occurring within a reasonable time. If counsel wishes a particular issue to be determined in advance of the trial, he or she has to take the initiative by bringing a motion. Rules of both the Superior Court of Justice and the Ontario Court of Justice require that a notice of application be served at least 30 days before a hearing in the Superior Court, and 15 days before a hearing in the Ontario Court of Justice. Counsel is allowed to seek relief from a missed deadline either with the consent of the opposing party or by asking the court for an abridgement of the time requirements. It is also required of counsel to ask that a judge be assigned to deal with these preliminary matters at the earliest opportunity because the trial judge has to hear certain motions.


A common feature of the day-to-day business in the criminal courts, the request for an adjournment can be made for many reasons, like the unavailability of a key witness or to permit the accused to retain counsel. This application is submitted before  a judge of the court in which the proceeding is to be heard, and the notice of application is to be filed at least 15 days before the date on which the motion will be heard, and the motion needs to occur at least 10 days before the date fixed for the proceeding. Thus, counsel is to act quickly when the need for an adjournment arises. If it is sought on the eve of a trial, such as where a witness has suddenly become ill, the court and the opposing party are to be informed at once. Either an abridgement of the time requirements in the Rules or relief from compliance with them altogether should be asked for. Moreover, counsel is to provide the court with as much information as possible about the witness’ illness, like the diagnosis, the treatment being received, and the anticipated time for recovery.

The evidentiary foundation for the order being sought, is in the affidavit enclosed with the application, which is to describe the nature of the charges, provide details of any prior adjournment requests, explain the reasons for the application, and propose a new date for the proceeding, and thereby provide a thorough basis for the adjournment request. When a witness is unavailable, the affidavit should establish the significance of the witness’ testimony, that the applicant has not been negligent in seeking the attendance of the witness, and an assurance that the witness will be able to attend court on the new date being proposed for the trial. While seeking an adjournment, both the counsels should keep in mind  the positions they are taking on the record and the implications it may have for any future application as per the Canadian Charter of Rights and Freedoms (Charter).

As the court has a broad discretion in determining whether or not to grant an adjournment, it is by nature exercised judicially, based on an objective consideration of all of the circumstances. It is expected that an accused person would be granted an adjournment when it is necessary in order to make full answer and defence, unless it is apparent that the accused is deliberately attempting to manipulate the system.


Generally, in criminal cases trials should take place in the community in which the offence allegedly occurred. The Code permits a judge, of the court in which the accused is going to be tried, to order that the trial be held in a different location within the province. The applicant, be it the Crown or defence, has to establish on a balance of probabilities that an order for a change of venue is “expedient to the ends of justice.” The purpose of a change of venue is to safeguard the accused’s and society’s interests in a fair trial, despite mere inconvenience to one of the parties.

The defence brings most applications for a change of venue in jury trials alleging that the accused cannot receive a fair and impartial trial in the community because of prejudicial pre-trial publicity.

According to the Rules, a notice of application, together with an affidavit by, or on behalf of, the applicant, is to be served on the opposing party at least 15 days before the date set for the motion, which has to be no less than 10 days before the trial is scheduled to begin. This notice of application is to specify the location in which it is proposed that the trial be held. A factum is necessary when the motion is to be heard in the Superior Court or in the Ontario Court of Justice.

The nature and circumstances of the offence charged, the date set for the trial, the reasons why a particular place is being proposed as the new venue, and any potential prejudice that would ensue if the trial location is not changed should be detailed in the affidavit supporting the application. The issue of prejudice should be such that it cannot be addressed by the safeguards in existence in the trial process. Prejudice arising from the nature of the offence alleged or the evidence the jury will eventually hear does not justify a change of venue.

If the basis for the application is prejudicial reporting by the media, the affidavit is to provide details of each report and the extent of its circulation in the area from which the prospective jurors would be drawn, with copies or transcripts of each media account attached as exhibits. As most adverse publicity occurs early in the proceedings, like at the time of the offence or the time of arrest, it is better for the application to be brought on promptly, because if the motion is delayed and media attention has died down, a change of venue is unlikely to be granted.