R v Finlayson

R. v. Finlayson

Ontario Court (Provincial Division)
Barrie, Ontario — Judge Payne | March 8, 1996

Background

Matthew Finlayson was charged with speeding — doing 116 km/h in a posted 80 km/h zone. His trial was originally set for July 13, 1995, at 10:30 a.m. Before that date, the Crown sent him a notice of motion requesting an adjournment because Constable Corey was on vacation leave. The notice said the Crown was requesting a new trial date of November 16, 1995, at 9:00 a.m., and critically stated: "If Mr. Finlayson is agreeable to the new trial date he need not appear on the 13th of July."

Finlayson's agent appeared on July 13th but found nothing on the docket — the case had been moved to November 16th without any formal adjournment hearing. When November 16th came around, Finlayson didn't show up, and the trial proceeded in his absence. He was convicted and appealed.

Issues

1. Did the court lose jurisdiction by moving the trial date based on the Crown's unilateral notice?
2. Can the Crown presume consent from a defendant's silence to an adjournment request?

The Presumed Consent Problem

Judge Payne was not impressed with the Crown's approach. The Crown had essentially said "we'll presume consent if we don't hear from you" — but that's not how adjournments work. The Crown is entitled to ask for an adjournment and invite the defendant to confirm agreement, but they cannot unilaterally impose a new date based on silence.

The judge found two fatal problems: First, there was no proof of service of the notice of motion. Second, and more importantly, "the Crown is not entitled to create by silence consent." They don't have the authority to say "we don't hear from you, we'll presume consent." That's judicial overreach by the prosecution.

The court noted that even if the Crown had properly notified Finlayson confirming the November 16th date, that still wouldn't cure the fundamental problem — you can't move a trial date based on presumed consent from silence.

Key Takeaway

The Crown cannot move your trial date by assuming your silence means agreement.

If the Crown wants to adjourn your trial, they need either your explicit consent or a judge's order after a proper hearing. A notice that says "if we don't hear from you, we'll assume you agree" has no legal force and any trial proceeding on the new date lacks jurisdiction.