Last summer the Supreme Court of Canada's groundbreaking decision R v Jordan set a limit on the time it takes to process a criminal prosecution to trial. If the actual time exceeds the limit, then the right of the accused to be tried within a reasonable time is considered to have been breached, unless certain circumstances apply. A breach invariably results in a stay of proceedings, which has the effect of dismissing the charges and preventing the Crown from laying them again.
As is often the case with watershed decisions, R v Jordan raised key questions, including these three:
- Jordan was a criminal case; is it applicable to non-criminal offences?
- the defendant was an individual charged with a criminal offence; would it apply to corporations facing charges under, say, the Occupational Health and Safety Act?
- historically the protection against long delays in processing charges has been different for corporate defendants than for individuals; does this distinction still exist post-Jordan?
Two recent cases before the Ontario Court of Justice go a long way towards answering these questions.
In the first case, two corporate defendants and an individual on trial for alleged violations under the Occupational Health and Safety Act requested the prosecution be stayed. They claimed an estimated 44-month delay in concluding the trial would be a breach of their rights, since R v Jordan mandates that criminal trials in provincial courts conclude within 18 months of charges being laid. The request was denied because the case is particularly complex. It involves significant questions about the cause of the collapse, reconstruction experiments, and multiple expert witnesses. In the second case, in which our firm served as counsel to the defendants, 22.5 months would have passed between the time charges were laid and the scheduled conclusion of a hearing on the merits. Our request for a stay of prosecution was accepted. The Justice of the Peace found that, unlike the first case, there was nothing complex about the prosecution. Furthermore, she said, the cloud of a prosecution hanging over the defendants and the court's failure to assist the defendants in understanding their Charter rights made the delay even more unreasonable. (Read more about the particulars of this case here.)
These two cases confirm that
- the time limit for bringing offences to trial also applies to corporations. The Court found that the interest of the public and participants in the justice system to a timely resolution applies equally to corporations
- R v Jordan contains an exception for particularly complex cases, so that an application for a stay based on the time needed to conclude a trial may not always succeed
What employers need to know
In our practice, we have already seen Crown prosecutors taking a more proactive approach to moving matters along quickly to trial, including cases with only corporate defendants. They may also seek quicker pre-trials and try to expedite pre-trial issues, such as disclosure.
Another interesting challenge will be for the Provincial Offences Court system to schedule lengthier matters expeditiously. In many smaller centres, there is often only one courtroom to hear provincial offences matters. Ensuring lengthier prosecutions can be scheduled within an 18-month timeframe may require more resources and possibly access to more space. The Crown may also choose to have cases tried in the Provincial Court system if insufficient resources are available in the Provincial Offences Court.
Overall, these decisions reinforce a guarantee of a trial without undue delay, and offer some reassurance that significant prosecutions will be resolved more quickly. Extraordinarily complex cases may lead to longer timeframes, but such cases are the exception rather than the rule. Thus, in most cases corporate defendants will likely have a sense of the timeframe within which they can expect their cases be heard, and a measure to defend themselves against undue delay.
Jeremy Schwartz (firstname.lastname@example.org; 416-862-7011) and Ryan Conlin (email@example.com; 416-862-2566) are partners at Stringer LLP. Ryan Conlin is also a frequent presenter at WSPS’ regional and national Partner in Prevention events.
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