In yet another application of R. v Jordan, on March 17, Justice Peter Wilkie of the Ontario Court of Justice stayed a charge in R. v. Stephenson’s Rental Services, saying the right of the defendant to be tried within a reasonable time under s. 11(b) of the Charter had been breached.
“The defendant’s trial has clearly been unreasonably delayed whether the analysis is under the Jordan framework or that of Morin. The Crown principally due to its ongoing failure to provide timely disclosure and its overall complacency about the pace of the litigation is responsible for the vast majority of the delay with the rest accounted for by institutional time constraints,” Wilkie wrote.
Justice Wilkie also stated: “In my view it is apparent from the court’s summary of the chronology of the trial itself, that the Crown made no efforts to manage the case so as to improve the pace of litigation but in fact through lack of focus and inaction further contributed to the delay.”
While there have been a couple of other stays issued under Jordan, Fasken Martineau DuMoulin LLP lawyer Norm Keith predicts there may be more to come.
“I think prosecutors at the Ministry of Labour and other government departments have not been paying attention to corporations who are in the process of being prosecuted simply because they assumed maybe that Jordan didn’t apply, but this case definitively asks does Jordan supersede CIP [R. v. CIP Inc.], which sets a higher test for prejudice for a corporation than an individual.
“CIP basically said you can’t presume prejudice just because of a long delay under s. 11(b) — you have to prove as the corporate defendant that you have suffered irremediable prejudice,” says Keith, who represented Stephenson’s Rental in the case.
And in his decision, Wilkie states: “. . . at the heart of Jordan is the objective to change the culture of delay in the justice system as a whole and to require all trials to function as efficiently as possible. In this sense they have signaled that when section 11(b) is breached it is not just the particular defendant who is prejudiced but the justice system and by extension the community as a whole. There is no basis for concluding that this objective applies only to trials of individuals.”
The charge against Stephenson’s Rental Services, issued under the Occupational Health and Safety Act, arose from a workplace fatality that occurred at the General Motors plant in St. Catharines, Ont. on Nov. 18, 2011. The worker was an employee of Procon Niagara, contracted by GM to do work at its plant. At the time of the incident that caused his death, the person was operating an electric-powered elevated work platform also known as an articulating boom lift, which had been rented by Procon from Stephenson’s Rental Services. The allegation was that the equipment provided by Stephenson’s was mechanically defective and not in proper working order.
At the time the delay application was heard in January 2017, the case had been in the system for more than 55 months and the trial was more than two years old. But that was not the first time there had been an assertion by Keith that the proceedings breached his client’s right to trial without reasonable delay.
There was a 30-month delay from the laying of the charge in June 2012 to the beginning of trial in December 2014. Keith brought an 11(b) application returnable on the trial date.
The two-and-a-half years leading to the trial included a 19-month period involving 13 appearances before the trial was set including one, where with no explanation, no one appeared for the Crown.
Keith says the Crown was arguing it was a complicated case with expert witness material involved. However, the judge pointed out the Crown had taken too long to turn its mind to the expert witness material.
“There is no question that the expert disclosure did take the Crown by surprise, but only because they had to that point, well into the trial, at least 2 years after he had been retained by the Ministry to provide critical expert testimony, inexplicably in my view, failed to turn their mind to it,” said Wilkie.
Keith admits he himself was responsible for a about nine days of the delay in August 2015 due to a scheduling issue, but other than that, the judge said when it came to the defence, “there was no waiver and no tactic calculated to cause delay.”
It then took about a year from the time the expert first gave evidence to get him back on the witness stand.
“Even the witness himself seemed surprised that he had never been asked to produce his work product beforehand or to bring supporting documentation with him to court,” Wilkie stated in his decision. “And of course when alerted to the issue, the Crown readily agreed that the defence was entitled to disclosure of the material and conceded the case would have to be adjourned to enable the defence to receive and review it.”
Given the way the case unfolded, it seems like a more “unique matter”, says Jeremy Warning, partner with Mathews Dinsdale & Clark LLP in Toronto.
“Typically you don’t see protracted disclosure issues like it appears occurred in the Stephensons case where the defence had been chasing material, it appears, for quite some time and then on the eve of trial is disclosed a fairly voluminous amount of documents and materials to review,” says Warning.
In terms of the facts set out, Warning says the case is “different from what one normally sees” with Ministry of Labour cases.
“It’s unfortunate that this case didn’t proceed as expeditiously as the law says it should because a stay of proceedings has denied a verdict on the merits — I’m not suggesting there had been an offence — but the merits were never determined and never will be determined,” says Warning.
“In terms of the administration of justice there is some erosion of the judicial process in the fact the charges had to be stayed but one has to balance the societal interest in achieving a verdict on the merits against the individual interest of the defendant to have a trial in a reasonable time when they can fairly challenge the evidence advanced by the prosecution. That’s an equally compelling consideration.”
The net delay was at least 60 months — 41 months above the presumptive ceiling.
As Jordan was decided the first week of July 2016 and the Stephenson’s case started in December 2014, the Crown had argued the Jordan 18-month rule didn’t apply.
But the judge disagreed, even noting that the Region of Niagara was not one where a culture of long delays was the norm.
“Ultimately, the right to trial within a reasonable period of time of the accused, be it individual or corporate, is superseding the social interest of a trial going to final decision,” says Keith.
Crown officials say they are “carefully reviewing” the Court’s decision to determine if there will be an appeal. “The matter remains before the court during the appeal period, and in order to preserve the fairness of the process, we will not comment on the case, specifically,” said spokesperson Janet Deline.
“Without commenting on the merits of the decision, we do want to assure families and loved ones that we continually review our processes to ensure we do everything we can to protect workers and ensure just results.”
In a case such as this, a corporation facing conviction could face a fine in the range of $100,000 up to $500,000.
Update: March 29, 2017: Comments added from Jeremy Warning of Mathews Dinsdale & Clark LLP, and Ministry of Labour.