One of the most interesting questions that arose after the Bill C-45 amendments to the Criminal Code, is whether a defendant could face criminal charges after pleading guilty or being convicted of charges under provincial OH&S legislation. Most provinces have strict limitation periods on when OH&S charges may be laid (one year in Ontario), whereas there is no time limit under the Criminal Code for proceeding with indictable offences (more serious cases). Thus, theoretically, a corporation or individual could be charged under the Criminal Code many years after OH&S proceedings have concluded.
This issue arose in a very recent fatality case (R. v. Campbell). Mr. Campbell pleaded guilty, as a supervisor under Ontario’s OHSA, to an offence relating to the improper use of a mobile crane. He was fined $3,500. Approximately five months after the guilty plea, the provincial Crown Attorney charged him with criminal negligence causing death under the Criminal Code.
Mr. Campbell brought a constitutional motion to dismiss the charge, primarily on the basis that the Crown Prosecutor ought to have proceeded with the OHSA charges and Criminal Code charges at the same time rather than waiting to lay criminal charges after the accused pleaded guilty to the OH&S offence.
He argued that the Crown and the police have a duty to prioritize their investigations especially in cases where the information is readily available and that lengthy delays should result in a stay of the charges in the absence of a legitimate explanation for the delay. He asserted that the Crown had concluded that there was a basis for a criminal charge at an early stage of the matter, and suggested that the criminal prosecution was a bad faith response by the Crown to what it perceived as a low fine in the OHSA prosecution. (In our view, the bad faith argument was weak considering the legal right of the Crown to appeal a sentencing decision.)
The Crown argued that the Ministry of Labour was dealing with the matter and it was waiting to see what was going to happen. Once there was a plea of guilty to the OHSA charge, the Crown concluded that it was appropriate to lay the criminal negligence charge and proceeded to do so. The Crown argued that the accused had not shown evidence of prejudice beyond what any other person facing criminal charges would experience.
The Court accepted Mr. Campbell’s argument and stayed the charges (though, not surprisingly, the Court did not accept that the Crown laid the criminal charge in bad faith). The Court found as fact that the police had a legal basis to lay charges shortly after the accident and there was no reason not to proceed with criminal charges expeditiously.
The Court rejected the Crown’s argument that Mr. Campbell suffered no prejudice and found that an accused should have a sense of security that when pleading guilty to a charge, that plea resolves the case in its entirety. The Court also accepted that if the OHSA plea were admissible at the criminal trial (which was a jury trial), it would be highly prejudicial to the accused. The Court found that the actions of the Crown “…constitutes a breach of the sense of fair play, an act which offends the community.” The Court pointed out that this was not a complex matter and that almost all the fruits of the investigation were obtained at an early stage.
This case is welcome news for defendants who choose to plead guilty to OHSA charges. In our view, introducing the potential of criminal charges being commenced after an individual pleads guilty to OHSA charges would chill the plea-bargaining process and make it more difficult to resolve matters without a trial.
We note that this case involved an individual accused. Ontario Courts have been highly resistant to corporate accused who have tried to have their OHSA charges dismissed based on pre-charge delay, and have held that the accused must show actual prejudice (i.e. a witness who would have given favourable evidence lost the chance to testify because of an unnecessary delay in the charges).[1]
This approach to delay was considered last summer in the Supreme Court of Canada decision in R. v. Jordan, which created an entirely new framework to post-charge delay. Thus far, the new Jordan Test has been held to apply to corporate accused. In our view, it is more likely than not that the Court’s reasoning about pre-charge delay in the criminal context will be held to apply to a corporate accused as the prejudice would be quite similar to that faced by an individual accused.
It is important to appreciate that this decision does not entirely close the door to criminal charges being laid after the OHSA process is complete. The case at issue was factually straight forward with a simple investigation. A court may well accept in a future case that the Crown had a legitimate explanation for waiting until the OHSA process was complete – for example, if the Crown were to discover new evidence that was unavailable during the initial investigation. The court would likely then weigh the Crown’s legitimate reasons and society’s interest in prosecuting offenders against the prejudice to the defendant. However, we expect that such cases would be the exception rather than the rule.
[1] Ontario (Ministry of Labour) v. Lee Valley Tools Ltd., 2009 ONCA 387 (CanLII) and R. v. National Steel Car Ltd., 2003 CanLII 30223 (ON CA)
