Sometimes a trial doesn’t finish as scheduled and must be continued on another day. It can then be difficult to find an early date when both lawyers and witnesses can attend, and the court can make the necessary time available to finish the trial. Occasionally, a proposed continuation date will meet all the other requirements, but a lawyer will have a matter set in the other BC trial court on that day. In these circumstances, they may ask the other court to reschedule its trial.
What happens then? What factors will the judge hearing an adjournment application consider?
For a number of years, there has been a convention governing scheduling conflicts between the Provincial and Supreme Courts of BC. In making trial and trial continuation scheduling decisions, the judges of each court have considered various factors affecting both cases, and determined by reference to those factors which case should yield to the other.
As part of that convention, all judges were encouraged to resist any suggestion that one court “trumps” the other. Provincial Court cases were not adjourned simply because there was a conflict with a Supreme Court matter.
This governing convention has served both courts well. However, in the wake of the 2016 Supreme Court of Canada decision about delay in criminal trials, R. v. Jordan, both courts thought it helpful to issue Practice Directions containing guidelines to govern scheduling conflicts. The Practice Directions apply to adjournment applications to accommodate a trial in the other court, and to scheduling trial or continuation dates said to be contingent upon “moving a case” in the other court.
These new Practice Directions, Supreme Court CPD - 2 and Provincial Court CRIM 11, state:
1. The status of the Court (i.e., Supreme Court or Provincial Court) does not determine whether and when one trial should take scheduling preference over the other trial, rather it is the characteristics of the trials at issue which will govern.
2. When counsel (lawyers) are confronted with the need to seek an adjournment of a case in one court to accommodate a case in the other court, counsel should be prepared to address the following considerations:
The nature of the cases in both courts, including:
- the charge(s) in each court;
- the custodial status of the accused in each court;
- the existence of co-accused on the matters in each court and their custodial status;
- whether the case is a continuation in either court; and
- whether the case is to be tried by a jury.
The age of the cases in both courts, including:
- the date the information was sworn;
- when each case was first set for trial;
- whether an adjournment creates a possible breach of the time requirements set out in R. v. Jordan;
- potential prejudice to a fair hearing as a result of the adjournment;
- the existence of prior adjournments on each case; and
- the availability of alternate dates for each case.
The requirements of the cases in both courts, including:
- vulnerable witnesses (e.g. children (including protection matters in the Provincial Court), sex offence victims, domestic assault victims);
- out-of-town witnesses;
- expert witnesses;
- the availability of the witnesses in the future if the trial is to be moved; and
- any other factors which impact the urgency of the matter to the parties in both cases.
As set out in the BC Supreme Court Practice Direction, CPD-2, Scheduling Conflicts between Provincial Court and the Supreme Court, where there is a continuing jury trial in the Supreme Court, the above considerations do not apply and the presiding Justice may order the ongoing jury trial to take precedence over any other trial set in the Provincial Court, or any Judge-alone trial set in the Supreme Court.
In all other cases, lawyers and self-represented litigants will help judges make fully informed decisions about scheduling conflicts by providing clear, precise and reliable information about these factors.