Canadian Lawyer InHouse

7 CANADIANLAWYERMAG.COM/INHOUSE MAY 2017 A roundup of legal department news and trends Keith says the Crown was arguing it was a complicated case with expert witness ma- terial 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 be- cause they had to that point, well into the trial, at least 2 years after he had been re- tained 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 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 fi rst 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 be- forehand or to bring supporting documen- tation 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 ma- terial and conceded the case would have to be adjourned to enable the defence to receive and review it." The case seems like a "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. He adds that the case is "different from what one normally sees" with Ministry of Labour cases. "In terms of the administra- tion 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 so- cietal 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 evi- dence advanced by the prosecution. That's an equally compelling consideration." As Jordan was decided the fi rst 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. "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 fi nal deci- sion," says Keith. Crown offi cials are "carefully reviewing" the decision to determine if there will be an appeal. Spokeswoman Janet Deline said, "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." IH had likely not been extinguished under the 1859 Pennefather Treaty. The process to get to trial was a long one "because that research has never really been done into that particular treaty," Tremblay- Hall told Legal Feeds. "Of course, the Crown wanted to have their own expert retained." In May 2016, the Crown wrote to the court stating that it would not proceed with the prosecution and would be seeking leave to withdraw the charges, saying the prosecution was not in the public interest. The band members did not consent to the Crown with- drawing the charges because they wanted to address the issues of treaty and aboriginal rights. The Crown did concede, though, that an award of costs would be fair and appropriate. "This judge in this particular case said, clearly the Crown was aware of these complex issues, at least as early as 2009," says Trem- blay-Hall. "That's why he came up with this elevated cost award" of $90,000 for one defendant, and $300,000 to be divided among the remaining three, including the band chief. "He didn't buy into the Crown's argument that they didn't realize the complexity until they got [ James Morrison's] report in 2014." The Crown's decision to wait so long to withdraw charges "pre- vented Batchewana from logging for eight years . . . At the last mo- ment to say, 'we're not going to pursue this, you should really initiate a civil claim — they could have done that in 2009, and said, listen, we're not going to pursue this prosecution. Justice R. Kwolek agreed. "This court fi nds that the Crown should have at the very least reassessed its position, once it received the ex- pert's report from the applicants, as to whether it should or should not pursue this prosecution," he wrote. "It did not do so within a reasonable period of time [despite] considering its options by the summer of 2015." Tremblay-Hall calls the decision "very rare; I don't think there's one other case in Ontario where . . . a cost award of such magnitude has ever been awarded against the Ministry of Natural Resources for a prosecution. "This decision breathes light and life into those documents that we've heard so much about in the last year or so," she adds, referring to the Truth and Reconciliation Commission report, which con- tained a number of "calls to action," and the UN Declaration on the Rights of Indigenous Peoples. "This is another example of court saying these documents mean something, they mean that you should be negotiating in good faith. They're not just words on a page." Indeed, wrote Kwolek, "Proceedings, at least theoretically, relat- ing to native land claims should be resolved, not with the threat of a pseudo-criminal proceeding outstanding hanging over the heads of the defendants, but in a spirit of negotiation and cooperation. Con- versely, Counsel for the defendants argue that without an imminent threat or an impending crisis or a judicial decision that opens the door for First Nation commercial logging, such assurances are mere platitudes that do not result in any action." The judge noted that this case before the court did not provide an appropriate forum to settle treaty disputes and that nation-to-nation dialogue should take place in order to reach resolution. IH

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