Her Majesty the Queen v. National Steel Car Limited [Indexed as: R. v. National Steel Car Ltd.]

63 O.R. (3d) 693

[2003] O.J. No. 856

Docket No. C38179

Court of Appeal for Ontario

Weiler, Abella and Charron JJ.A.

March 13, 2003

Criminal law -- Abuse of process -- Delay -- Trial judge finding that delay in laying charges under Occupational Health and Safety Act amounted to abuse of process in absence of explanation from Crown of that part of delay which was not attributable to discovery and investigation -- Trial judge granting stay of proceedings -- Stay set aside on appeal -- Appeal judge erred in reversing trial judge's factual finding that company suffered no prejudice -- Corporate entity retains burden of proof that delay impaired full answer and defence -- Pre-charge delay may be consideration on abuse of process motion but mere existence of such delay cannot justify granting stay of proceedings -- Trial judge erring in placing burden on Crown to explain pre-charge delay absent evidence of bad faith or ulterior motive -- Crown appeal allowed -- Occupational Health and Safety Act, R.S.O. 1980, c. 321.

Charges were laid against the defendant under the Occupational Health and Safety Act in February 2001. The trial judge found that the investigation of the complaint was largely complete in April 2000. The trial judge dismissed the defendant's application for a remedy for a breach of its rights under s. 11(b) of the Canadian Charter of Rights and Freedoms on the basis that the defendant had not established that it suffered irremediable prejudice. However, she found that the Crown has an obligation to explain pre-charge delay that cannot be attributed to discovery and investigation, and that, in the absence of any explanation from the Crown for the pre-charge delay in this case, there had been an abuse of process that warranted the imposition of a stay of proceedings. The Crown's appeal was dismissed. The Crown appealed further.

Held, the appeal should be allowed.

While pre-charge delay may be a consideration on an abuse of process motion, the mere existence of delay cannot justify granting a stay of proceedings. In the absence of bad faith or ulterior motive, there was no basis for placing a burden on the Crown to explain the investigative and prosecutorial processes. The charges were laid within the one-year limitation period set out in the Occupational Health and Safety Act. In placing such a burden on the Crown, the lower courts in effect imposed a judicially created limitation period, which they were not entitled to do.

APPEAL by the Crown from a judgment dismissing the Crown's appeal from a stay of proceedings.

Cases referred to R. v. C.I.P. Inc., 1992 95 (SCC), [1992] 1 S.C.R. 843, 135 N.R. 90, 9 C.R.R. (2d) 62, 71 C.C.C. (3d) 129, 12 C.R. (4th) 237; R. v. Francois (1993), 1993 8582 (ON CA), 15 O.R. (3d) 627, 18 C.R.R. (2d) 187 (C.A.); R. v. L. (W.K.), 1991 54 (SCC), [1991] 1 S.C.R. 1091, 124 N.R. 146, [1991] 4 W.W.R. 385, 4 C.R.R. (2d) 298, 64 C.C.C. (3d) 321, 6 C.R. (4th) 1; R. v. Morin, 1992 89 (SCC), [1992] 1 S.C.R. 771, 134 N.R. 321, 8 C.R.R. (2d) 193, 71 C.C.C. (3d) 1, 12 C.R. (4th) 1; R. v. Rourke, 1977 191 (SCC), [1978] 1 S.C.R. 1021, 38 C.R.N.S. 268, [1977] 5 W.W.R. 487, 35 C.C.C. (2d) 129, 16 N.R. 181, 76 D.L.R. (3d) 193 (sub nom. Rourke v. R.) Statutes referred to Canadian Charter of Rights and Freedoms, s. 11(b) Occupational Health and Safety Act, R.S.O. 1980, c. 321 [page694]

Mark J. Zega, for respondent. Wes Wilson, for appellant.

The judgment of the court was delivered by

[1] WEILER J.A.: -- The issue on this appeal is whether it is appropriate to grant a judicial stay of proceedings on the grounds of abuse of process where there has been a delay in laying charges following an investigation under the Occupational Health and Safety Act, R.S.O. 1980, c. 321.

The Facts

[2] Workers at National Steel Car (the "Company") raised concerns that they were working in proximity to damaged insulation that contained asbestos. The Company arranged for samples of the insulation to be tested. Although the test results confirmed the workers' concerns, the workers were not informed of the results of the test until approximately one week later. The workers then staged a work refusal and the Ministry of Labour was called to investigate allegations of infractions under the Occupational Health and Safety Act between December 15, 1999 and April 12, 2000. The trial judge found that the investigation of the complaint was completed for the most part on April 20, 2000. The investigator submitted his report to the legal department of the Ministry of Labour on or about November 6, 2000, and on February 28, 2001, charges were laid against the company. 27. The following chart sets out the relevant dates:

EVENT DATE TIME LAPSE BETWEEN EVENTS

Date of offences Between December 15, 1999 & April 12, 2000

Date Information February 28, 2001 10.25 months & Summons Sworn (from April, 2000)

Disclosure March 23, April 2

Date of 1st May 8, 2001 2.5 months appearance (further disclosure requested)

Date of 2nd June 12, 2001 1.25 months appearance at which Pre-Trial scheduled for Oct. 3,

Disclosure July 16, 2001 complete

s. 11(b) September 6, 2001 3 months Canadian Charter of Rights and Freedoms

Judgment - stay Septebmer 25, 2001 0.5 months

Total time from swearing of Information to Charter application 6.75 months

[3] In calculating the length of the delay for purposes of considering the stay application, the justice of the peace included the pre-charge delay and the anticipatory delay from the date of the application in to the date of trial. She stated:

. . . considering both the pre and post-charge delay, it is anticipated that the time from the commission of the alleged offence to the date of trial will be at least 20 months.

[4] Notwithstanding the fact that she found this delay unreasonable, she ruled that the s. 11(b) application failed as the Company had not established that it suffered irremediable prejudice.

[5] The justice of the peace then considered whether there had been an abuse of process in light of unexplained pre-charge delay that was not "attributed to discovery and investigation". Her Worship held that the onus shifted to the Crown to explain or justify the pre-charge delay.

The Occupational Health and Safety Act states that no prosecution shall be instituted more than one year after the last act or default upon which the prosecution is based occurred. This is to allow for the discovery of and investigation into offences against the Act. The time is not to be used as a convenience, or accommodation, or in any way as an advantage to the Crown. Therefore, when the offence has been identified and investigated, and charges are going to be laid, it should be done as expeditiously as possible so as not to impact on the accused's ability to make full answer and defence. So when there is a delay that cannot be attributed to the discovery and investigation, the Crown has an obligation to explain that delay.

[6] In the absence of any explanation from the Crown for the pre-charge delay, she held that there had been an abuse of process that warranted the imposition of a stay.

[7] Cooper J. dismissed the Crown's appeal stating the justice of the peace had"made the right decision for the right reasons and did not err in law or fact . . .". [page696]

[8] Notwithstanding that the appeal judge held that the justice of the peace did not err in fact or law, he purported to upset her finding on the issue of prejudice. He held"when an allegation such as this is hanging over the corporation's head . . . I cannot see that there could be anything other than prejudice . . . It is a local industrial company with this stigma hanging over its head and it wants to mount the defence of due diligence. In the circumstances I am satisfied that there would have been prejudice."

[9] Having obtained leave to appeal, the Crown appeals the decision of the appeal judge dismissing its appeal. At the conclusion of the appeal, this court allowed the appeal with reasons to follow later. These are those reasons.

Analysis

[10] The appeal judge erred in inferring prejudice to the Company. There is no evidentiary basis on which the court could reverse the finding of fact by the justice of the peace that there was no prejudice and infer that the Company would be stigmatized.

[11] In R. v. C.I.P. Inc., 1992 95 (SCC), [1992] 1 S.C.R. 843, 71 C.C.C. (3d) 129, at pp. 1040-41 S.C.R., p. 143 C.C.C., the Supreme Court held that with respect to a corporate accused, the only interest engaged under s. 11(b) is the right to a fair trial. Hence, to succeed on a s. 11(b) application, a corporate entity must persuade the court that its ability to make full answer and defence has been impaired. Pre-charge delay is a factor to consider respecting trial fairness: R. v. Morin, 1992 89 (SCC), [1992] 1 S.C.R. 771, 71 C.C.C. (3d) 1, at p. 859 S.C.R., p. 14 C.C.C.; R. v. L. (W.K.), 1991 54 (SCC), [1991] 1 S.C.R. 1091, 64 C.C.C. (3d) 321, at p. 1100 S.C.R., p. 328 C.C.C. However, there was no evidence that the pre-charge delay in this case adversely affected the fairness of the trial.

[12] Similarly, while pre-charge delay may be a consideration on an abuse of process motion, the mere existence of delay cannot justify granting a stay of proceedings: R. v. L. (W.K.), supra, at p. 1095-98 S.C.R., p. 327 C.C.C.; R. v. Francois (1993), 1993 8582 (ON CA), 15 O.R. (3d) 627, 18 C.R.R. (2d) 187 (C.A.) at p. 629 O.R. More particularly, in the absence of any evidence of bad faith or ulterior motive, there was no basis for placing a burden on the Crown to explain the investigative and prosecutorial processes. The charges were laid within the one- year limitation period set out in s. 69 of the Occupational Health and Safety Act. In placing such a burden on the Crown, the lower courts in effect imposed a judicially created limitation period, which they were not entitled to do. See R. v. Rourke, 1977 191 (SCC), [1978] 1 S.C.R. 1021, 35 C.C.C. (2d) 129, at pp. 1040-41 S.C.R., p. 143 C.C.C. and R. v. L. (W.K.), supra, at p. 1100 S.C.R., p. 328 C.C.C. [page697]

[13] The appeal is allowed, the decision of the appeal judge is set aside, the Charter application is dismissed and the information is remitted to the Ontario Court of Justice before a different justice of the peace for a trial on the merits.

Appeal allowed.