By Jeremy Schwartz and Amanda Boyce
The Ontario Court of Appeal has issued a decision that will likely make it more difficult for defendants in complex regulatory prosecutions to assert their Charter right to be tried within a reasonable time.
We have written before on the ground-breaking decision of the Supreme Court of Canada in R v Jordan. In Jordan, the Supreme Court set hard caps on the time it takes to process criminal and regulatory prosecution to the end of trial.
Although Jordan was a criminal case, subsequent cases confirmed that the principle applies to employers facing regulatory charges as well. In the Ontario Court of Justice, where offences under the Occupational Health and Safety Act (“OHSA”), Employment Standards Act, Workplace Safety and Insurance Act, and other breaches of provincial regulatory law are prosecuted, Jordan mandates that trials conclude within 18 months of the charges being laid.
If the actual time to the end of trial exceeds the Jordan ceiling then, outside of certain “exceptional circumstances”, the right of the accused to be tried within a reasonable time under section 11(b) of the Canadian Charter of Rights and Freedoms is breached. This results in a stay of proceedings, which has the effect of dismissing the charges and preventing the Crown from laying them again.
Exceptional Circumstances: Discreet Events vs. Particularly Complex Cases
In general, exceptional circumstances fall into two categories: (1) discrete events and (2) particularly complex cases. The Court of Appeal in its recent decision Ontario (Labour) v. Nugent provided a detailed explanation of the differences between these two categories and clarified how they are to be applied by the courts.
In doing so, Nugent afforded considerable deference to the Crown’s case management decisions in particularly complex cases and, in our view, effectively grants the prosecution licence to disregard the 18-month presumptive ceiling in complex cases.
(As of January 29, 2020 *We understand an application for leave to the Supreme Court of Canada is underway*)
Ontario (Labour) v. Nugent (“Nugent”)
Nugent was a particularly complex case, involving both criminal and regulatory charges under the OHSA, following a workplace fatality at an open pit gold mine. The corporation and various individual defendants were charged with criminal negligence causing death, as well as various offences under the OHSA. The criminal charges were withdrawn against the individuals after the corporation pleaded guilty. The OHSA charges were dropped as against the corporation, but the Crown intended to proceed against the individuals.
The individuals brought an application to have the charges dismissed for delay under s. 11(b) of the Charter because the trial was not scheduled to start until about three months beyond the presumptive 18-month ceiling. The application judge found that the net delay in this case was 23 months.
Notably, the Defendants admitted that the case was “particularly complex”, and so the only issue before the Court was whether to apply the “complex case” exception to relieve against the otherwise default remedy – a stay of proceedings.
Two Exceptions, Two Approaches
“Discrete events” include illnesses or reasonably unexpected events at trial. In contrast, Jordan defined “particularly complex cases” as those which require “an inordinate amount of trial or preparation time” over and above the allotted time under the presumptive ceiling because “of the nature of the evidence or the nature of the issues”. The hallmarks of a particularly complex case may include a combination of factors such as: a detailed investigation; voluminous disclosure; a large number of witnesses; requirements for expert evidence; a large number of charges, against one or several individuals; the involvement of several different defence counsel; the requirement for a lengthy trial; and several judicial pre-trial conferences.
When discrete events cause delay, the court calculates the amount of delay attributable to each discrete event, and then subtracts that time from the total actual time to the end of trial to determine whether the remainder exceeds the presumptive 18-month ceiling. If it does, the case is dismissed for delay.
By contrast, the Court of Appeal confirmed in Nugent that delay caused by particularly complex cases must be assessed without reference to the 18-month ceiling. The question at issue is whether the Crown developed and followed a concrete plan to minimize the delay occasioned by the complexity – not whether the Crown developed and followed a concrete plan to attempt to bring the trial to a conclusion within the presumptive 18-month ceiling.
Lower Court Decision
The trial judge found that this was a particularly complex case, as admitted by the parties; however, he found that the Crown had failed to develop and follow an adequate plan to minimize delay resulting from the complexity. As a result, he concluded that s. 11(b) was breached and stayed the OHSA charges against all Defendants. This decision was upheld on initial appeal, before coming before the Court of Appeal.
The two critical findings under appeal at the Ontario Court of Appeal were: (i) that the Crown did not secure a trial date in a timely fashion; and (ii) that the Crown’s case management approach was problematic because it did not take steps to streamline the evidence to be introduced at trial.
Complex Case Exemption
The Court of Appeal overturned the decisions of the courts below and found they misinterpreted the complex case exception.
The trial court judge had found that the Crown’s failure to seek a trial date until about five and a half months before the presumptive ceiling was reached made completion of the trial within the presumptive ceiling almost impossible. The Court of Appeal found it was an error of law for the lower court to reference the presumptive ceiling as the benchmark against which to judge the timeliness of the Crown’s actions.
The Court of Appeal held that the particularly complex case exception cannot be denied merely because the Crown did not aim to conclude the case within the presumptive ceiling. Further, the Crown is not required to set trial dates that it ultimately may not need or that may be unrealistic, especially in the context of a complex case.
The Court of Appeal also reiterated that the Crown’s plan to minimize delay must be reasonable, assessed on a global basis, having regard for the nature of the evidence and the issues in the case. It is not the role of the trial judge to retroactively micromanage every step the Crown takes in its case. While the trial judge in Nugent acknowledged that many of the most significant steps taken by the Crown were reasonable, appropriate, and in the interests of justice, he ultimately concluded that the steps taken were inadequate as a whole. For instance, defence counsel made various suggestions to the Crown regarding how proceedings could be streamlined which the Crown disregarded.
The Court of Appeal found that the trial judge parsed each step and micromanaged the Crown’s case, thereby committing an error of law. The Court further noted that the Crown was not obliged to take every suggestion made by the defence, and that ultimately it had acted reasonably in the circumstances of the case. There is no requirement for the Crown to show that the strategies it adopted were ultimately successful in minimizing delay; instead, it must simply prove that they were reasonable strategies.
As a result, the Court of Appeal found that delay in completing this complex case was reasonable and ordered the defendants to stand trial on the OHSA charges.
The Court of Appeal in Nugent provided an analytical framework for understanding the difference between the “discrete event” and “complex case” exceptions. Unfortunately, the Court did not articulate a standard by which to evaluate whether the Crown developed and followed a reasonable, concrete plan to minimize the delay occasioned by a complex prosecution – it simply emphasized that the courts are not to “micromanage” the Crown’s decisions. Moreover, the level of deference expressed by the Court of Appeal in Nugent for the Crown’s case management decisions may make it more difficult for defendants in complex cases to assert their s. 11(b) right to be tried within a reasonable time.
Ultimately, what is most concerning is that the Court of Appeal found it was an error of law to refer at all to the presumptive ceiling as a yardstick against which measure the reasonableness of the Crown’s plan. It would be illogical to require the Crown to feign efforts to meet the 18-month Jordan ceiling in a complex case where doing so would be impossible. However, the Crown does not know from the very beginning of a prosecution whether the case at hand is particularly complex. That is finding to be made by the courts in deciding an 11(b) application, which is always done in hindsight.
The Court’s decision in Nugent may therefore have the effect of disincentivizing the prosecution from acting with urgency in cases it believes are likely to be deemed particularly complex. Where the Crown turns out to be wrong about that characterization, the result is to effectively encourage (or at least passively nurture) a breach of the accused’s s. 11(b) right to trial within a reasonable time.
Further, the Jordan ceiling is the only judicially confirmed, objective measure of reasonableness we have. Forbidding reference to it without providing an alternative benchmark or framework leaves courts to consider whether the Crown’s plan and actions were “reasonable” in a vacuum. This hearkens back to the nebulous process for evaluating reasonableness in pre-Jordan jurisprudence.
For more information contact:
Jeremy Schwartz at [email protected] or 416-862-7011
Amanda Boyce at [email protected] or 416-862-1687