Ontario (Ministry of Labour) v. Lee Valley Tools Ltd., 2009 ONCA 387

CITATION: Ontario (Ministry of Labour) v. Lee Valley Tools Ltd., 2009 ONCA 387

DATE: 20090508

DOCKET: C49423

COURT OF APPEAL FOR ONTARIO

Rosenberg, Simmons and Lang JJ.A.

BETWEEN

Her Majesty the Queen in Right of Ontario (Ministry of Labour)

Respondent

and

Lee Valley Tools Ltd.

Appellant

Stephen Bird, for the appellant

David McCaskill, for the respondent

Heard: April 15, 2009

On appeal from the decision of Justice Gregory A. Pockele of the Ontario Court of Justice dated December 13, 2007 allowing an appeal from the decision of Justice of the Peace Sharon M. Woodworth dated August 25, 2006 and reported at 2006 ONCJ 563.

Lang J.A.:

[1] This is an appeal from the decision of the provincial offences appeal court judge, Pockele J., which granted an appeal from the decision of the trial judge, Justice of the Peace Woodworth. The trial judge had stayed charges under the Occupational Health and Safety Act, R.S.O. 1990, c. O.1 (OHSA) against the appellant, Lee Valley Tools Ltd. (Lee Valley). The appeal court judge lifted the stay and remitted the charges to the trial judge who had concluded that, but for the stay, she would have registered convictions against Lee Valley.

[2] The further appeal to this court challenges the appeal court judge’s conclusion that the trial judge erred in finding that the appellant established prejudice that compromised its right to a fair trial under s. 11(d) of the Canadian Charter of Rights and Freedoms and merited the stay of the charges. The prejudice at issue was said to arise because a potential defence witness, Mr. Kochylema, was no longer available to give evidence by the time the charges were laid.

[3] For the reasons that follow, I would dismiss the appeal.

BACKGROUND

[4] The regulatory charges arose from an accident in which a Lee Valley employee injured his hand while using a table saw to make a kerf cut. There was no operating guard in use on the saw to protect the employee’s hand.

[5] The accident occurred on September 5, 2003. An inspector from the Ministry of Labour filed his report recommending prosecution by December 18, 2003. Eight months later, on August 11, 2004, still within the one-year OHSA limitation period, the Ministry laid three charges alleging that Lee Valley failed to equip its saw with a guard, failed to provide instruction and supervision, and failed to provide a safe procedure for kerf cuts.

[6] On the day of the accident, and for approximately two weeks before, Mr. Kochylema, the injured employee’s primary supervisor, was not on the premises. He was on holiday. On the day of the accident, the employee’s immediate supervisor was a Mr. Johnston, who had himself been trained by Mr. Kochylema.

[7] Subsequent to the accident, Lee Valley was ordered to submit a “detailed investigation report” to the Ministry inspector. As part of his own investigation, the Ministry inspector obtained a written statement from Mr. Kochylema. That statement was not helpful to Lee Valley. By the time the charges were laid, Mr. Kochylema had terminal cancer. He died on September 22, 2004. The parties agreed and the trial judge accepted that Lee Valley did not have an opportunity to speak with Mr. Kochylema about its defence given the timing of the charges.

The Trial

[8] At the outset of the trial, Lee Valley argued that the delay between the accident and the trial, when combined with Mr. Kochylema’s lost evidence, breached its s. 11(d) Charter right to a fair trial or constituted an abuse of process, either of which should be remedied by a stay of the charges.

[9] The injured worker and Mr. Johnston testified for the prosecution at trial. Their evidence about the instructions they had been given was not helpful to the defence. However, the store manager gave testimony that Mr. Kochylema “would have been able to provide a more detailed account of the specific steps taken in the wood shop to ensure the health and safety of the workers”. The trial judge was particularly concerned about evidence Lee Valley may have been able to obtain regarding communications Mr. Kochylema may have had with the injured employee or with Mr. Johnston about the use of the guard and experience with the tools. While the trial judge was cognizant of Mr. Kochylema’s earlier statement to the inspector and his pre-charge availability to give a statement to Lee Valley, she concluded that there was “no reason for such a statement to have any focus on the issue of due diligence.”

[10] The trial judge concluded that Mr. Kochylema could have testified to more safety initiatives. She found, since Mr. Kochylema’s evidence was not available, that it was “virtually impossible” for Lee Valley to effectively cross-examine the injured worker or Mr. Johnston. However, the trial judge did not explain what aspects of Mr. Kochylema’s potential evidence could have assisted the cross-examination of Lee Valley’s other employees or advanced its defence that it took all reasonable steps to avoid the accident.

[11] Although Lee Valley argued both a s. 11(d) breach and abuse of process, the trial judge disposed of the latter argument on the basis that there was no evidence “of any oblique purpose or mala fides on the part of the Crown”. However, she concluded that Lee Valley’s s. 11(d) right to a fair trial was “irremediably prejudiced”. Finding that this was one of “the clearest of cases”, the trial judge granted the remedy of a stay of proceedings under s. 24(1) of the Charter.

The Appeal

[12] The appeal court judge acknowledged the appropriate standard of review, including the “great deference” to be accorded to a trial judge’s findings of fact, which should not be set aside absent palpable and overriding error. He recognized the reason for this high level of deference and cautioned himself against “second guessing” the findings and inferences drawn by the trial judge. Nonetheless, the appeal court judge concluded that “there was insufficient evidence before the court to support her finding that the evidence of the deceased would have, and I underline, assisted in fact and in a material way the conduct of the defence” and thereby prejudiced Lee Valley.

[13] The appeal court judge described the trial judge’s findings of fact as “speculative”. Relying on R. v. Gatley (1992), 1992 CanLII 1088 (BC CA), 74 C.C.C. (3d) 468 (B.C.C.A.), where the accused conceded that he had the onus to demonstrate actual prejudice from the pre-charge delay, and R. v A.(D.) (1992), 1992 CanLII 2833 (ON CA), 10 O.R. (3d) 241, affirmed 1993 CanLII 93 (SCC), [1993] 2 S.C.R. 441, which I will discuss later in these reasons, the appeal court judge concluded that the accused failed to meet the onus of demonstrating actual prejudice. He noted that the trial judge did not refer “to a single fact that would have been elicited from the deceased witness.” Indeed, the appeal court judge noted:

[N]o evidence was put before the court as to what the deceased would say about the training procedures, maintenance of the equipment, guards or anything whatsoever other than the fact that [Mr. Kochylema] might have been the major repository of such knowledge. There was no evidence as to what the deceased might have said in testimony to assist Lee Valley in defence of these charges. There is a vast gap between “actual, known, material evidence” and “unknown testimony which might be material.”

[14] The appeal court judge accordingly allowed the appeal.

ISSUES

[15] The appellant argues that the appeal court judge erred:

a) in applying the proper standard of review;

b) in concluding that the appellant failed to establish the requisite prejudice; and

c) in basing his decision on the absence of fault or ulterior motive on the part of the Crown regarding the pre-charge delay.

ANALYSIS

Standard of Review

[15] The appellant argues that the appeal court judge erred in overturning what was essentially a discretionary decision to stay the charges and in concluding that the trial judge made palpable and overriding errors of fact.

[16] A discretionary decision will be overturned only in limited circumstances. As Weiler J.A. explained in R. v. Bradford (2001), 2001 CanLII 24101 (ON CA), 52 O.R. (3d) 257, at para. 3, “[a]n appellate court will only be justified in interfering with a trial judge’s discretionary decision if “‘... the trial judge misdirects himself or if his decision is so clearly wrong as to amount to an injustice’ [citations omitted]”.

[17] However, this was not a case where the appeal court judge overturned an exercise of discretion on the part of the trial judge. Rather, the appeal, at least regarding the issue of prejudice, turned on the trial judge’s findings of fact, the inferences she drew from those facts and her application of the law. The appeal court judge recognized that it was not open to him to overturn factual findings and inferences absent palpable and overriding error.

[18] Accordingly, I see no error in the standard of review applied by the appeal court judge. I would not give effect to this ground of appeal.

The Requisite Prejudice

[19] Putting aside that the charges were laid within the one-year limitation, in my view, the appeal can be dismissed on the following basis. The appeal court judge made no error in concluding that Lee Valley failed to establish that the allegedly lost evidence would have assisted its defence in a material way (causing an unfair trial), or that the absence of the evidence irreparably prejudiced the appellant (justifying a stay of the charges).

[20] In R. v. A.(D.), Dubin C.J.O. considered an accused’s ss. 7 and 11(d) Charter challenges, which were based on lost potential witnesses. In observing that witnesses can disappear even with a brief delay, sometimes to the advantage and sometimes to the disadvantage of an accused, Dubin C.J.O. concluded in the case before him “the nature of the evidence which the deceased may have provided is purely speculative.” He continued: “[t]here is no basis to conclude that that evidence would be material in the sense that it would likely have assisted the defence in rebutting the Crown’s case. Indeed, it could well have supported the Crown’s case against the respondent.” He concluded that the trial judge erred in holding that “all that was necessary was that the deceased could have testified on some relevant issues, without more.”

[21] Dubin C.J.O. instructed that there must be more than potential relevance to the evidence and “[t]here must be an air of reality that the missing evidence would in fact and in a material way assist the accused.” On this issue, he quoted with approval from a ruling of Campbell J. in R. v. Finta, an unreported judgment of the Supreme Court of Ontario, delivered April 24, 1990. In that ruling, Campbell J. explained the parameters of the burden on the accused to show that the lost evidence precluded a fair trial:

The defence does, however, have a burden to show that the lost evidence is likely to preclude a fair trial. It is a first step in discharging that burden to show what the evidence is, to show that there is more than a basis in speculation to say what, in fact, what the lost evidence is or that the lost witness would, in fact say. A burden to show that the lost evidence is relevant and material. A burden to show that it is substantial or significant in the sense it is not trivial or frivolous or tenuous. It is a first step of this motion to show that the lost evidence would more likely than not tend to rebut some evidence of the Crown’s case or would more likely than not tend to assist the accused.

If the evidence points to the innocence of the accused that would, of course, satisfy this pre-condition but it is not necessary the evidence go that far and actually point to the innocence of the accused as opposed to merely assisting the accused or tending to rebut some evidence or some element of the Crown’s case.

It is, however, with those cautions, necessary to make some assessment of the potential value to the accused of the lost evidence. If there is no demonstration that the evidence would help him or if it appears that the evidence might just as easily hurt the accused more than it would help him, that tends to rebut any claim that its loss would preclude a fair trial to the accused.

There must be an air of substantial reality about the claim that any particular piece of lost evidence or all of it cumulatively together would actually assist the accused in his defence. If there is no such air of substantial reality, it cannot be said the delay which caused the loss of evidence is likely to preclude a fair trial for the accused. [Emphasis added in the reasons of Dubin C.J.O.]

[22] Although dealing with the context of the Crown’s inadvertent loss of certain material, Sopinka J. instructed at para. 25 of R. v. La, 1997 CanLII 309 (SCC), [1997] 2 S.C.R. 680 that, if basing the finding of a Charter breach on missing evidence, “the accused must establish actual prejudice to his or her right to make full answer and defence.”

[23] In Bradford, this court considered an argument alleging a s. 7 Charter breach based on the loss of one of the complainant’s statements to the police in a sexual assault case. Weiler J.A., writing for the court, explained that, in assessing the prejudice of the loss to the accused’s right to make full answer and defence, the trial judge had failed to consider the lost statement in context and to determine whether there was an adequate substitute for the statement. Referring to R. v. Mills, 1999 CanLII 637 (SCC), [1999] 3 S.C.R. 668, at paras. 73-76 and La, at para. 25, she explained at para. 7 that an accused cannot establish an “automatic” breach of his right to make full answer and defence by simply showing that he was “deprived of relevant information”. The accused must establish actual prejudice to his right to a fair trial.

[24] In considering whether a trial would be unfair, Weiler J.A. explained that “it is important to bear in mind that the accused is entitled to a trial that is fundamentally fair and not the fairest of all possible trials.” See also R. v. O’Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411, at para. 193.

[25] It follows, Weiler J.A. explained at para. 8 that “[a]ctual prejudice occurs when the accused is unable to put forward his or her defence due to the lost evidence and not simply that the loss of the evidence makes putting forward the position more difficult.” In the case before her, she determined at para. 46 that while the task of the defence was made more difficult by the missing statement, it did not render the accused’s trial fundamentally unfair.

[26] In addition, Weiler J.A. observed the constraints on the remedy of a stay. A stay is only granted in the “clearest of cases” where the accused’s right to a fair trial is irreparably prejudiced or the integrity of the administration of justice is irreparably harmed: see also R. v. Knox (2006), 2006 CanLII 16479 (ON CA), 80 O.R. (3d) 515, at para. 32. Only irreparable prejudice is at issue in this case.

[27] Accordingly, the appellant had the onus to show actual prejudice by demonstrating that the missing witness would have given specific evidence without which the appellant would have been unable to fairly put forward its defence.

[28] In this case, the trial judge concluded that the lost Kochylema evidence prejudiced Lee Valley’s right to a fair trial because, unlike Mr. Kochylema’s post-accident statement to the inspector, his trial evidence could have focused on due diligence, particularly regarding safety issues. Lee Valley argues that this is enough to establish the required air of reality and that it need not prove the precise content of the lost evidence. However, Mr. Kochylema was absent around the time of the accident, which would suggest he had no direct knowledge of the circumstances of the accident. Moreover, the appellant does not explain what evidence Mr. Kochylema could have given about earlier safety precautions or steps, other than the evidence that he was responsible for safety issues.

[29] The fact that a witness may have relevant evidence is not enough to establish prejudice. There is no basis to conclude that the missing evidence in this case would have assisted the defence; it could well have supported the Crown’s case, as did the evidence of the injured worker and his immediate supervisor.

[30] In these circumstances, the appeal court judge was entitled to conclude that the trial judge’s finding that the appellant suffered prejudice was premised on “unsubstantiated speculation”.

[31] Accordingly, in my view, it was open to the appeal court judge to conclude that Lee Valley did not establish that the missing evidence would have assisted the appellant or that its absence impaired its right to a fair trial. Moreover, even if the missing evidence made the defence more difficult, this did not render the trial fundamentally unfair.

[32] In the alternative, the appellant argues that it did not need to prove actual prejudice and that the requisite degree of prejudice can be “inferred” or “presumed” from Mr. Kochylema’s knowledge of safety precautions taken by Lee Valley. However, this is not the type of case where prejudice can be inferred from trial delay, nor where prejudice can be inferred on the basis of the fading memories of material witnesses. Instead, this is a case of alleged trial unfairness because a potential witness is no longer available to testify in circumstances where there is a dearth of particulars about what testimony he would have provided. Either the missing witness had evidence that would have been helpful to the appellant or he did not. In such a case, prejudice can be assessed by considering the evidence that the witness would have given had he been available. Actual prejudice cannot be presumed or inferred from the mere fact of lost evidence without more.

[33] In the light of this conclusion, it is unnecessary to deal with the appellant’s remaining ground of appeal regarding the pre-charge delay and the exceptional nature of the facts in this case. However, I do not read the appeal court judge’s reasons on the question of establishing prejudice as depending upon the absence of fault or ulterior motive on the part of the Crown.

[34] Accordingly, I would dismiss the appeal.

RELEASED: May 8, 2009 “S.E. Lang J.A.”

“J.S.” “I agree M. Rosenberg J.A.”

“I agree Janet Simmons J.A.”