Canadian Lawyer InHouse

MAY 2017 6 INHOUSE News Roundup Workplace fatality case stayed due to unreasonable delay A n Ontario judge has stayed a Min- istry of Labour charge against a com pany accused in a workplace fatality because the matter dragged through the system for 55 months and the trial was more than two years old. 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 Char- ter had been breached. "The defendant's trial has clearly been unreasonably delayed whether the analy- sis is under the Jordan framework or that of Morin. The Crown principally due to its ongoing failure to provide timely dis- closure 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 con- straints," 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." Fasken Martineau DuMoulin LLP law- yer 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 corpora- tions who are in the process of being pros- ecuted simply because they assumed maybe that Jordan didn't apply, but this case defi ni- tively asks does Jordan supersede CIP [R. v. CIP Inc.], which sets a higher test for preju- dice 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 irremedi- able 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 effi ciently 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 work- place fatality that occurred at the General Motors plant in St. Catharines, Ont. on Nov. 18, 2011. The worker was an employ- ee 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 al- legation 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 fi rst 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 be- ginning 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 in- cluding one, where with no explanation, no one appeared for the Crown. Ontario court orders costs against Crown in treaty dispute A provincial court judge has ordered that costs be paid to four members of a First Nation band near Sault Ste. Marie in a dispute over logging and treaty rights, after the Crown decided to withdraw charges on the eve of the trial, eight years after charges had been laid. "I fi nd that this delay by the Crown in reaching a decision to withdraw the charges in May of 2016 was 'a marked and unacceptable departure from the reasonable standards expected of the prosecution,'" wrote Justice R. Kwolek of the Ontario Court of Justice in a 28-page judgment released Feb. 13. In R. v. Sayers, three members of the Batchewana First Nation were charged with log- ging on Crown land without the authority of a forest resource licence, contrary to the Crown Forest Sustainability Act, while the chief of the band, Dean Sayers, was charged with being a party to the logging. The defendants maintained that the logging was within their established treaty rights, under the terms of the Robinson Treaty of 1950. The fi rst court appearance took place in November 2008, but the trial was not sched- uled to begin until September 2015, at which time the defendants tendered not-guilty pleas. Defence counsel fi led a Notice of Constitutional Question, arguing that the defen- dants' use of their land was protected by s. 35 of the Constitution Act and could not be limited by the Crown Forest Sustainability Act. Jennifer Tremblay-Hall defended three of those charged and engaged James Morrison, an ethno-historian and researcher, to prepare a report on the history of the Batchewana First Nation and its treaty agreements. That report was released in May 2014, and it sub- stantiated the band members' claim that the Batchewana First Nation had the right to har- vest timber resources for sustenance, trade or sale under the 1850 Robinson Treaty, which

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