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Author:
Rob Boswell

Date:
2016.12.15

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Occupational Health and Safety

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THE EMPLOYERS' EDGE

Live Nation: Corporate Defendant Charged under OHSA Has Right to be Tried within Reasonable Time

On June 16, 2012 a stage constructed for a Radiohead concert at Downsview Park collapsed.  Thirty-three year old drum technician Scott Johnson was crushed to death.

On June 6, 2013, the Crown for the Ministry of Labour charged three corporations and one individual with a number of offences under the Occupational Health and Safety Act (“OHSA”).   Three and one-half years later and the trial is not yet complete.  It is not anticipated to end until January 27, 2017.

On October 14, 2016, trial judge Mr. Justice Nakatsuru of the Ontario Court of Justice heard an application by Live Nation Canada Inc. and individual defendant Domenic Cugliari, which alleged that their rights to a trial within a reasonable time had been violated.  These rights are protected by section 11(b) of the Charter of rights and Freedoms.  Of particular interest in this case is whether and to what extent s. 11(b) rights apply to a corporate defendant, and whether the delay in the circumstances of this trial were unreasonable.

In his blog of July 13, 2016, Brian Silva reviewed the recent landmark decision of the Supreme Court of Canada in R. v. Jordan.   That decision changed the landscape for the application of s. 11(b).  The SCC set a presumptive ceiling for delay after which it will be considered unreasonable.  For cases in provincial court, including those brought under the Provincial Offences Act, the presumptive ceiling was set at 18 months and for matters in the Superior Court the ceiling was set at 30 months.  For cases which have not reached this level of delay, the onus is on the defendant to argue that delay is unreasonable in the circumstances of the case.  The Crown can rebut the presumption by demonstrating that there are exceptional circumstances including discrete events and particularly complex cases.

On December 5, 2016, Mr. Justice Nakatsuru applied the Jordan decision to the application of Live Nation and Mr. Cugliari. 

The decision of Mr. Justice Nakatsuru rejected the Crown’s argument that a corporate defendant was not entitled to the protection of s. 11(b).  He noted that the element of prejudice to a defendant has been taken into consideration with the establishment of a presumptive ceiling by the SCC in Jordan.  A corporation enjoys the same protection of its fair trial interests as does an individual.

Mr. Justice Nakatsuru also applied Jordan to his assessment of whether exceptional circumstances justified the delay or rebutted the presumption.  He noted several discrete events that were beyond the control of the Crown which contributed to extensive delay to completion of the trial.  Despite these events, he noted that presumptive ceiling of 18 months would still have been exceeded.  He then considered whether the complexity of the trial was such that the presumption was rebutted and, applying his own experience as a trial judge together with a realistic review of the evidence already heard, he determined that the case was of such complexity that the presumption was rebutted. 

As a result, the s. 11(b) motion was denied.

The case demonstrates a reasoned application of the Jordan principles to apply the presumptive ceiling in provincial offences matters to both corporate and individual defendants, particularly in a case where the prosecution of both defendants is intertwined.

The lawyers of CCPartners have expertise and experience in defending clients in proceedings under the OHSA and in respect of other provincial offences, inquiries and proceedings where s. 11(b) rights may apply.  We would be pleased to assist you with any enquiries you may have respecting this decision or the decision in Jordan. 

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