Court File and Parties

Court File No.: Mississauga Information No. 00591 Date: 2016-03-01 Ontario Court of Justice

Between: Her Majesty the Queen

— And —

Black and McDonald Limited

Before: Justice of the Peace M. Duggal

Heard on: January 21-22, 2016

Decision on Charter Motions released on: March 1, 2016

Counsel:

• Mr. D. Phelan, Counsel for the prosecution
• Mr. N. Keith, Counsel for the defendant

JUSTICE OF THE PEACE DUGGAL

INTRODUCTION

[1] Black & McDonald is a corporation that provides a broad range of construction, maintenance and specialized services to a number of clients in Ontario and across Canada. The company's head office is located at 2 Bloor Street East, Suite 2100 in Toronto, Ontario. Black & McDonald is under contract to provide ongoing maintenance of the heating, ventilation and air conditioning systems ("HVAC") at Toronto Pearson International Airport.

[2] On February 5, 2013, Mathew Degan, a junior maintenance mechanic employed by Black & McDonald was injured while working on an Air Handling Unit in a mechanical room at the airport. The worker fell about nine feet when an unsecured ladder on the Air Handling Unit slipped. The ladder had not been tied to the base.

[3] Black & McDonald was charged with failing to take reasonable precautions for a worker at Pearson International Airport. The charge is based on s. 25(2) of the Occupational Health and Safety Act (OHSA). The particulars of the charge are Black & McDonald failed to take reasonable precautions to ensure a ladder was tied down or otherwise secured to prevent slipping before use by a worker.

[4] An Information was sworn on January 15, 2014. The laying of the charge started the legal proceedings; the defendant was served with a summons on January 15, 2014 with a first court appearance of February 11, 2014. There were nine court appearances from February 11, 2014 to July 28, 2015 including four judicial pre-trials. A two day trial was scheduled on June 28, 2015 for January 21-22, 2016.

[5] On January 21, 2016, the defendant sought a stay of proceedings pursuant to s. 11(b) and (d) of the Charter due to unreasonable delay, abuse of process and denial of the right to a fair trial.

[6] The total time from the swearing of the information to the date of trial is 2 years and 10 days. The defendant is also asking the Court to consider pre-charge delay. The length of the delay in this case justifies an inquiry into the reasons for the delay. That is one of the few issues both parties agree.

ISSUES BEFORE THE COURT

[7] In determining whether there has been an 11(b) breach, I will consider the following issues as set out in the parties' factums, affidavits and the Morin factors, R v. Morin, [1992] 1 S.C.R. 771 at para. 31. Those issues are:

1. LENGTH OF DELAY AND WHETHER PRE CHARGE DELAY IS APPLICABLE
2. NATURE OF 11(B) RIGHTS RE CORPORATE ACCUSED
3. WAIVER OF TIME PERIODS
4. REASONS FOR DELAY including:
   • (A) INHERENT TIME REQUIREMENTS OF CASE
   • (B) ACTIONS OF ACCUSED
   • (C) ACTIONS OF CROWN
   • (D) LIMITS ON INSTITUTIONAL RESOURCES
   • (E) OTHER REASONS FOR DELAY
5. PREJUDICE TO CORPORATE ACCUSED
6. APPROPRIATE REMEDY including POSSIBLE STAY AND/OR COSTS

1) LENGTH OF DELAY AND WHETHER PRE CHARGE DELAY IS APPLICABLE

[8] The pre-charge delay is this case is 11 months and a day. That is the period from the offence date (Feb. 5, 2013) to the swearing of the Information (January 6, 2014).

[9] The defendant relies in part upon on a decision of Justice Reinhardt of the Ontario Court of Justice gave in R. v. Ramasaroop [2009] O.J. No. 3753 at paras. 36-37, regarding pre-trial delay. The facts in Ramsaroop are completely different than the facts in this case. The accused person, Ramsaroop, was a university student who was charged with forcible confinement and mischief following a university "sit in" protest. In assessing pre-charge delay, the Court concluded that the one month period from the sit in to a charge being laid was sufficient for the Crown to review evidence and reach conclusions regarding who to charge. As well, the one month period was sufficient to collate and prepare disclosure materials for the students who were charged and had a first appearance. The matter was delayed several months to provide substantive disclosure and the disclosure was still not complete when the judicial pre-trial was set.

[10] Factually, Mr. Ramsaroop's bail conditions restricted the ability to work and study. A second category of prejudice related to the stress and cloud of suspicion arising from the criminal charges. Mr. Ramsaroop was not able to go to the University of Toronto for one month from the time of the offence to the laying of the charge due to uncertainty about the charges and the police failure to bring the information before the Court. The student was unable to challenge the terms of the deficient police undertaking and was in legal limbo until that Information was sworn (see paragraph 63 of decision). Black & McDonald was never in a similar uncertain legal state from the date of the offence to the swearing of the Information.

[11] In this case, substantial disclosure, except for a one page document called a File Tracking Record was provided by the Prosecution on the second appearance in court on February 4, 2014.

[12] As a general rule, pre charge delay is not protected by s. 11(B) unless there is bad faith with respect to the timing of the charges. Section 69 of the OHSA provides that charges may be brought within a one year period. As long as the charges have been laid within a year, there is no obligation of the Crown to explain any delay based on the investigative or prosecutorial process.

[13] In R. v. National Steel Car Ltd, [2003] O.J. No. 856, para. 10-12, the Ontario Court of Appeal cautioned that to impose an obligation on the Crown would have the effect of substituting a judicial limitation period for the period set down by the legislature. The case of National Steel Cart Ltd. involved a prosecution under the OHSA regarding asbestos concerns at a workplace. There was a 10 month delay between the completion of the investigation and the laying of charges. The justice of the peace included the pre-charge delay and granted a stay based on an abuse of process, in part because the pre-charge delay had not been explained by the Crown.

[14] On appeal, Justice Cooper dismissed the Crown's appeal concluding that the justice of the peace had "made the right decision for the right reasons and did not err in law or fact…" The Crown obtained leave to the Court of Appeal and Justice Weiler for a unanimous Court held that:

While pre-charge delay may be a consideration on an abuse of process, the mere existence of delay cannot justify granting a stay of proceedings…More particularly, 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 Occupation Health and Safety Act. In placing such a burden on the Crown, the lower courts in effect created a limitation period which they were not entitled to do. See R. v. Rourke (1978), 35 C.C.C. (2d) at 143 (S.C.C.) and R. v. L. (W.K.) [1991] 1 S.C.R. at 328 (cite included).

[15] There is a separate public policy goal relating to the role of courts and social policy. Mr. Keith, counsel for the corporation, argued the Inspector prepared a report and it averaged around 3 pages per month. Such a submission underscores the inability of courts to enter the investigatory and prosecutorial arenas prior to the pre-charge period. What is the ideal pace? Is it 4 pages per month or 10 pages per month? Such scrutiny would involve a review of the investigatory and prosecutorial process; that is a role both in terms of form and function that courts are generally unable to perform.

[16] This principle was underscored in R. v. Milani (2014), 120 OR (3d) when Justice van Rensberg of the Ontario Court of Appeal at para. 42 held that:

Extending 11(b) to the pre-charge period would be unworkable. As McIntyre J. observed in R. v. Kalanj, at para 19, the courts are not equipped to fix a time limit for the investigation of a given offence as the investigatory period is unpredictable, circumstances will differ from case to case and much information gathered in an investigation must, by its very nature be confidential.

[17] The cases from the Ontario Court of Appeal and the Supreme Court of Canada confirm that pre-charge delay is generally not to be considered in the 11(B) analysis. National Steel Car Ltd., supra, is a case on point because it involves the application of pre-charge delay in the context of an OHSA investigation. It is binding as it is a decision from the Ontario Court of Appeal. The principles regarding pre-charge delay in National Steel were reinforced in Milani, supra, a decision of the Ontario Court of Appeal from 2014.

[18] Finally, the corporate accused was issued a summons. There is nothing regarding the pre-charge delay that involved irremediable prejudice. Black & McDonald's contract to complete ongoing maintenance and servicing at the Greater Toronto Airport Authority began on December 1, 2015 and was scheduled to end on December 31, 2015. The contract was extended as of November, 2015 (p. 3 of Cathy Chandler's Dec. 21, 2015 Affidavit). Based on the facts and the applicable law, I conclude that the pre-charge delay in this case is not applicable in the 11(B) analysis. I will only consider the period of delay of 2 years and 10 days, the period from the laying of the charge to the first trial date.

2) NATURE OF 11(B) ANALYSIS RE CORPORATE DEFENDANT

[19] In R. v. CIP Inc., [1992] S.C.J. No. 34, the Supreme Court of Canada ruled that s. 11(B) of the Charter applies to corporations. Justice Stevenson held that CIP had the right to be tried within a reasonable time. The right to a fair trial was seen as fundamental to the adversarial system and there was no principled reason why corporations did not have the same right.

[20] However, a corporation's ability to claim prejudice is severely limited as a corporation is not a person whose security of person is affected by the anxiety, concern and stigma of exposure to criminal proceedings. For people, the right to liberty is protected by seeking to minimize restrictions on liberty which result from pre-trial incarceration or restrictive bail conditions. The fair trial rights in 11(b) are to ensure that proceedings take place while evidence is available and fresh. See Morin, supra at paras. 25-28.

[21] Justice Stevenson in CIP noted a corporate's prejudice claims are severely negated by quoting Justice MacDonnell at para. 48. Justice MacDonnell in R. v. 741290 Ontario Inc. wrote:

The most compelling argument which has been mounted for a presumption of prejudice has been with respect to the effects of delay on security of the person. Once concern about that factor is nullified, as it is in dealing with a corporation, the greatest part of the basis for a presumption of prejudice collapses.

[22] In order to succeed on an 11(B) application, a corporate accused must establish that its fair trial interest has been irremediably prejudiced. Irremediable prejudice is a form of prejudice that a court cannot erase through any specific orders regarding the conduct of the trial. See CIP, supra, at para. 50.

[23] An important distinction also has to be noted between criminal offences and regulatory offences including OHSA breaches. Courts have recognized for a long time that individuals charged with regulatory offences do not endure the same degree of stigma as those facing criminal charges. See R. v. Ellis Don Ltd, [1990] OJ No 2208 (CA) at paras. 76, 79, 93.

3) WAIVER OF TIME PERIODS

[24] There are no time periods where the defendant waived any time periods. The Prosecutor conceded this point in his factum.

REASONS FOR DELAY – A REVIEW OF TRANSCRIPTS

[25] A charge was sworn on January 15, 2014. The following chronology sets out what occurred on each appearance date based on a summary of the transcripts:

Feb. 4, 2014 – Disclosure provided by Crown before first appearance of February 11, 2014;

Feb. 11, 14 – First Appearance – Counsel for Ministry of Labor and corporation attend and adjourn case to May 14, 1, to be spoken to. This period will be characterized as part of the Intake period;

May 14, 14 – Second Appearance – Counsel for Ministry of Labor and defendant attend and agree to adjourn the case to August 12, 14; both sides agree that a judicial pre-trial will be set on the August, 2014 date. This will also be considered as part of the Intake period;

August 12, 14 – Third Appearance – Counsel for the Ministry of Labor and corporation attend and agree to a judicial pre-trial of December 9, 2014. The Court offers earlier dates of October 14, 28 and November 25, 2014. Crown counsel suggest December 9th, 2014. Counsel for the corporation, Ms. Shelly agrees and says the December 9th date is fine. The case is adjourned to December 9, 2014 for a judicial pre-trial. This will be considered neutral time as it is an inherent part of the time required for a judicial pre-trial;

December 9, 2014 – Fourth Appearance - Judicial Pre-Trial is unable to take place as Crown assigned is not present. Prosecutor does not have position on sentencing and no meaningful judicial pre-trial takes place. The case is adjourned to February 24, 2015 for a judicial pre-trial to begin again (Dec. 9, 14 endorsement on Information). This period of 2.5 months is attributable to the Crown;

February 24, 15 – Fifth Appearance - The presiding judicial officer conducts a judicial pre-trial and the matter is adjourned to April 7, 15 to continue the judicial pre-trial. Both sides agree to the April 7, 2015 as a resumption date for a continuing judicial pre-trial; this period is considered neutral as both the dates were set on consent to allow for pre-trial discussions;

April 7, 15 – Sixth Appearance – Continuing Judicial Pre-Trial before H.W. Anand. There are different lawyers at this jpt; counsel requires time to review further disclosure and have further discussions. Both sides agree to postpone the case on consent for a continuing judicial pre-trial; this period is considered neutral as both the dates were set on consent to allow for pre-trial discussions;

May 26, 15 – Seventh Appearance – Crown has reviewed documents provided and looks to set trial dates. Crown estimates a trial will be two to three days. Defence suggests there will be two to three witnesses for the defence and estimates three to four days of trial estimate. The Court suggests attending with the trial coordinator and then returning to set a date for trial. Both sides agree to June 16, 2015 date; a trial date will be set on that day. Neutral time as time requested on consent;

June 16, 15 – Eighth Appearance – A student for the Crown appears; defence counsel is paged and no one responds. A two day trial estimate is given; the clerk says she is loath to provide two days if defence counsel is not present. The presiding Justice sets a two day trial for January 21-22, 2016; at first, the Justice notes that the dates are being set with the input of Crown and defence. The court clerk notes that she spoke to the trial coordinator but no trial dates were set with the trial coordinator. A confirmation date is set for July 28, 2015. The Court sets the dates on the basis of Crown availability and for whatever reason the defence is not present. The trial is set in absentia but with a confirmation date to confirm the availability of defence counsel; defence responsible for time till July 28, 2015;

July 28, 15 – Ninth Appearance – Counsel for Crown confirms trial dates of January 21-22, 2015. Ms. Jaswal appears for corporation and confirms trial dates of January 21-22, 2016. Ms. Jaswal says due diligence materials were sent to the Crown and defence asked the Crown to either move forward or consider withdrawing the case. The client is getting a little frustrated with having to pay for appearances with nothing to report; confirms the trial dates and says the witness trial list is still outstanding. The Court notes that disclosure issues should be addressed with the Crown. Ms. Jaswal asks for an undertaking that the Crown will provide a witness list or information that is outstanding. The Crown refuses to provide an undertaking but that counsel for the corporation, Mr. Keith can contact the Crown assigned, Mr. McCaskill.

4) REASONS FOR DELAY A) INHERENT TIME REQUIREMENTS OF CASE

[26] In Morin, supra, the Supreme Court held that all offences have certain time requirements which inevitably lead to delay. These requirements include the complexity of the case; the "intake requirements" such as disclosure, hiring counsel and judicial pre-trials if necessary. As the number and complexity of intake requirements increase, so does the amount of delay that is reasonable. The length of time necessary will be influenced by local practices and should reflect that procedural reality.

[27] This is not a simple matter under the Provincial Offences Act (POA). The trial estimate was two to three days; the disclosure consisted of 274 pages plus a one page document (F.T.R.). I would describe it as more complex than a run of the mill P.O.A. trial involving one police officer and a civilian but nothing as complex as a fatality involving numerous experts' reports that may run two weeks. See R. v. Vollick, [2010] O.J. No 5326 at paras. 3, 11 and 15 as an example of a case involving greater complexity requiring a 15 day trial.

[28] The Intake requirements included holding a judicial pre-trial because that is required in any case that will take over a day in the Mississauga POA courts.

[29] The period from January 15, 2014 to December 9, 2014 will be considered neutral and part of the Intake requirements involving a two day POA trial that requires a judicial pre-trial. That is a period of eleven months (rounded off within six days).

[30] While on first blush, eleven months may seem like a lengthy Intake period, there were no concerns regarding the delay noted by the defence. For example, on the third appearance of August 14, 2014, the clerk offered earlier judicial pre-trial dates in October or November, 2014, the Crown proposed December 9, 2015 as a judicial pre-trial date. The defence indicated the December date was fine and did not accept any of the earlier jpt dates. Nor did the defence indicate they were unavailable.

4) REASONS FOR DELAY B) ACTIONS OF ACCUSED

[31] No one appeared on behalf of the defence on the June 16, 2015 date. This fact was conceded in Ms. Chandler's Supplementary Affidavit of January 16, 2016 (Para. 6). In reviewing the totality of the transcript, I conclude that the trial dates were set without defence counsel's input and were set in absentia. The case had to return on July 28, 2015 in order to confirm defence availability (See both endorsement on Information and transcript). Defence argued that the court had his trial dates. Looking at the transcript along with the endorsement, I arrive at the opposite conclusion. The period from June 16, 2015 to July 28, 2015 is attributable to the defence to confirm his availability for trial. That is a period of 1.5 months.

[32] The June 16, 2015 date is also significant as the Court was concerned that if the case was adjourned without setting trial dates, then those dates would be lost in the system. This is reflected in the June 16, 2015 transcript.

[33] While an accused is constitutionally entitled to bring any Charter application, any adjournment because the trial could not be heard is attributable to the defence. This is not to penalize the accused but rather a reckoning of why an adjournment was necessary. A party will be responsible for delay in underestimates trial time and not indicating potential Charter applications at the time of scheduling.

[34] In this case, two days were set aside for trial on January 21-22, 2016. Argument on the 11(B) applications took almost two days. The defence also indicated it is bringing an O'Connor application. This is set for argument on March 18, 2016. The trial was adjourned to June 6th and June 13th, 2016 to accommodate the O'Connor application. All of the time from January 22, 2016 to June 13, 2016 is attributable to the defence as it failed to provide accurate trial estimates regarding the Charter motions and the O'Connor application.

4) REASONS FOR DELAY C) ACTIONS OF CROWN

[35] On December 9, 2014, the Judicial Pre-Trial was unable to take place as Crown assigned is not present. The Prosecutor did not provide a possible sentencing position and no meaningful judicial pre-trial took place. The case was adjourned to February 24, 2015 for a judicial pre-trial to begin again (Dec. 9, 14 endorsement on Information). This period of 2.5 months is attributable to the Crown.

4) REASONS FOR DELAY D) LIMITS ON INSTITUTIONAL RESOURCES

[36] Institutional delay is "the period of time when the parties are ready for trial but the judicial system cannot accommodate them"; some delay is inevitable from a justice system that schedules and processes a large volume of cases. Even when there are sufficient courtrooms, prosecutors and judges, and good faith efforts are made by all concerned, delays inevitably and unavoidably occur.

[37] The court must assess systemic delay and determine whether it is reasonable or unreasonable. Only unreasonable delay will count against the Crown. In Morin, the Supreme Court of Canada provided a range of eight to ten months as a guideline. See Morin at paras. 54-55; R. v. MacDougall, [1998] S.C.J. No. 74 at paras. 53-54; R. v. Konnafis [1996] OJ No. 3961 at para. 17.

[38] The period of institutional delay in this case is (July 28, 2015 - January 21, 2016) is 5.75 months. That is well within the range of reasonable delay set out in the cases of Morin, MacDougall and Konnafis.

OTHER REASONS FOR DELAY

[39] A judicial pre-trial was held on February 24, 2015 and continued on April 7, 2015 and May 26, 2015. This period of 5.5 months is neutral as both the Crown and defence were conducting ongoing discussions regarding the case.

[40] Defence argued that this period should be attributable to the Crown because the Crown in charge (Mr. McCaskill) of the file never attended the judicial pre-trials and they had to be adjourned. I disagree. The transcripts from the period of April to May, 2015 do not reflect any concerns that the pre-trials were not fruitful due to Mr. McCaskill's absence. As an example, the transcript of April 7, 2015 reveals this sixth appearance was for a continuing judicial pre-trial. Different lawyers other than Mr. McCaskill or Mr. Keith appeared on the ongoing pre-trial. The transcript reveals that counsel who had carriage of the matter require more time to review disclosure and have further discussions. Both sides agree to postpone the case on consent for a continuing judicial pre-trial.

PREJUDICE TO CORPORATE ACCUSED

[41] Black & McDonald has to establish irremediable prejudice; this irremediable prejudice has to flow from the delay.

[42] There are three grounds of complaint involving prejudice. Those three grounds are the delay in obtaining the FTR; (2) the ESDC (Employment & Social Development Canada) file; (3) reputation to the company and differential treatment due to late disclosure of FTR.

[43] The first ground relates to the disclosure around the File Tracking Record. The file tracking record is a one page document that is similar to a log of the case. It is prepared on a pre-printed form. The defence argues the FTR is the most important document as it relates to the viability of the prosecution, applicability of regulations and goes to the Inspector's state of mind. The Prosecution argues the FTR is of marginal value as it duplicates the investigator's report regarding her conclusions. I agree with the Prosecution. The file tracking record is a one page document one a pre-printed form and is of marginal value as it repeats the investigator's conclusions (Exhibit 1). The late disclosure has not affected the company's trial interests both in terms of volume (1p.) or content.

[44] More significantly, the FTR was provided on December 21, 2015; that is four weeks prior to trial. The defence conceded there was sufficient time to review the FTR in order to prepare for trial. The real complaint is that the defence was forced to bring an 11(B) and 11(D) application which forced the Crown to provide the FTR. The Court should thus stay the charges and order costs for the delay in providing the FTR.

[45] The manner in which the FTR was disclosed has not caused irremediable prejudice. Nor do I conclude that the Crown acted negligently. The correspondence between the defence and Crown suggests the following; initially, the Crown took the position that the FTR was not relevant or alternatively, that it was subject to privilege. A new Crown, Mr. Phelan, upon receiving the Charter motions, changed his mind and provided the FTR in advance of trial.

[46] In terms of prejudice, the lack of the File Tracking Record did not prevent the defence from submitting a documents brief in support of a due diligence defence. This was done by way of a letter dated April 1, 2015 from the defence to the Crown (Tabs 9, 11 and 12 of defence Motion Record). The defence does obviously not have to tell the Crown of its defence nor submit anything to the Crown prior to the trial. However, the lack of the FTR did not prevent the defence from arguing its case in terms of a due diligence defence.

[47] The second complaint regarding disclosure relates to the existence of a file with Employment Social Development Canada (ESDC), formerly known as Human Resources Development Canada, (HRDC). I conclude that the HRDC file is in the exclusive possession and control of the federal Crown regulator. It is a third party record and subject to an O'Connor application.

[48] The defence was aware of a separate regulatory investigation by a safety officer of the Federal Occupational Health and Safety Regulator. The defence said as much in a letter to the Crown on July 30, 2014. In the July 30th letter, counsel requested the Ministry of Labor contact the appropriate HRDSC office and specific officer and secure the file (Tab 7 of Cathy Chandler's Dec 21, 15 Affidavit).

[49] In its Factum, the defence argues that the defence requested disclosure early and often and the case had to be put over in court several times because the Crown did not provide disclosure. That argument is not set out in the transcripts of the eight court appearances. The only date on which there was a concern about disclosure was July 28, 15. This does not mean that the defence did not seek the File Tracking Record through the correspondence. However, the concerns specifically regarding the FTR were not articulated on the record. The attendances on the numerous pre-trials suggest the dates proposed were with the consent and cooperation of both sides.

[50] The defence was content with the pace of proceedings. In the court transcripts from February 4, 2014 to May 26, 2015, defence acquiescence to the pace of proceedings may rebut any claim of prejudice. In Morin, supra, para. 78, the Court held that:

While the accused was not required to do anything to expedite her trial, her inaction can be taken into account in assessing prejudice. I conclude for this reason that the accused was content with the pace with which things were proceeding and that there was little or no prejudice occasioned by the delay.

[51] The defence argues the Court can conclude that the passage of time will dull memories and such memory loss is prejudicial to the accused. However, an important difference needs to be drawn between inferred prejudice and irremediable prejudice. This difference was underscored in CIP when the Supreme Court of Canada said:

It seems that allowing a corporation to rely upon a presumption of prejudice would offend that principle. It is my opinion, that with respect to this fourth factor, a corporate accused must establish that its fair trial interest has been irremediably prejudiced.

[52] Black & McDonald has not produced any evidence of irremediable prejudice. The contract for the company with the GTAA was renewed in November, 2015. There is no evidentiary basis that any specific witness' recollection has been so impaired amounting to irremediable prejudice.

[53] Another claim of prejudice is that the company's reputation has been tarnished due to the late disclosure of the FTR; at paragraph 41 of the December 15th, 2015 Affidavit, Ms. Chandler provided evidence that the FTR had been provided 26 times before in other cases. The argument is that such delay in providing the FTR resulted in unfair treatment of the company and was prejudicial. There are two observations I make on that point. First, such prejudice was never specifically identified in the two Affidavits prepared by Ms. Chandler. Secondly, such prejudice if it exists is not irreparable prejudice.

[54] In his closing arguments, the defence argued the Charter requires that an accused party receive full and fair treatment; in this case, if the Court does not grant a stay or order costs, the case will be repeated over and over again. There was no evidentiary basis for the withholding of the FTR and the company had to pay the costs of this Motion.

[55] A breach of the right to disclosure does not always result in an infringement of the right to make full answer and defence. An accused must show the failure to disclose affected the outcome or trial fairness. The Court is required to assess the materiality of the alleged non-disclosure in relation to the remedy sought which is this case is a stay and costs. See R. v. Stinchcombe, [1991] 3 SCR 326 at para. 24, R. v. Dixon [1998] 1 S.C.R. 224 at para. 34, 37.

[56] In assessing non-disclosure, two issues arise. Those two issues are the substance of the disclosure and the timing of the disclosure. The cases of R. v. Greganti, [2000] OJ No. 34 and R. v. Vanbots Construction Corp., [1997] OJ No 4439 (Ct J) (QL) provide some guidance on those two issues.

[57] In Vanbots Construction Corp, supra, Justice Reinhardt stayed charges involving against a company that was facing OHSA charges involving a fatality. The history of Vanbots was as follows; there was an initial stay which was overturned and the case was sent back for re-trial. At the second trial, the preliminary drafts and notes by the consulting engineer were lost; that evidence formed an important basis for laying the charge. There was other evidence consisting of an investigative file by one of the investigative engineers that was not disclosed. All of the non-disclosed evidence occurred in mid-trial and Justice Reinhardt concluded the defence's ability to make trial decisions about who might be called at trial and the voir dire was impaired by the late disclosure. (See Vanbots, supra at para. 11, 19 and 23, 52).

[58] Based on the timing of the non-disclosure (mid-trial, second trial), Justice Reindhardt concluded the defence had made trial decisions that were irreversible. Declaring a second mistrial and sending the matter back for a new trial would have resulted in prejudice that could not be removed for both the accused person and the company. It was one of those exceptional cases (given the advanced state of the proceedings), that it was not possible to remedy the prejudice to the accused's right to make full answer and defence. On that basis, the charges were stayed.

[59] In R. v. Greganti, [2000] OJ No. 34, Justice Stayshyn stayed charges against Mr. Greganti due in to non-disclosure of 3500 pages of notes in mid-trial. The disclosure provided in mid-trial was necessary to make full answer and defence. The lateness of the disclosure deprived the defence of the opportunity to make informed decisions regarding trial strategy and constituted an abuse of process. In terms of prejudice, the accused was in custody for 8 months and released on strict bail conditions; he was unable to return to Sault Ste. Marie to attend to his business, family functions and a friend's funeral. Refer to Greganti, supra, at p. 1-2, paras. 182-183.

[60] The timing and content of the non-disclosure in Greganti is different than this case. In addition, the prejudice suffered by Mr. Greganti included custody, restrictions of social mobility and access to friends and family. Such prejudice does not exist in this case.

[61] The FTR was disclosed in 26 other case (Tab 16, Cathy Chandler's Dec. 21, 2015 Affidavit). In that same Tab, I have reviewed a letter from D. Kleiman, a Crown, which is dated May 21, 2014. In that letter, Mr. Kleiman writes that although he does not agree that the FTR meets the relevancy threshold for disclosure, it is being provided. I would characterize the FTR attack as a pursuit of every possible piece of information rather than a focused attack on the merits of the case. The FTR was provided in advance of trial and there was no irreparable prejudice to the timing of that disclosure.

[62] I have reviewed the decision of Justice of the Peace Allison in R. v. Detox Environmental Limited, an unreported decision dated October 5, 2015 from Whitby. That decision is not binding on me; I disagree with the analysis of irremediable prejudice at p. 16 where the Justice of the Peace does not appear to distinguish irremediable prejudice from inferred prejudice. Nor is there any application of the Marstar infra, para. 63, Pioneer Construction, infra paras. 63-64 or Norwall Group Inc. decisions infra, para. 65.

[63] R. v. Marstar Trading International Inc., [1999] O.J. No. 26644 is a case that illustrates the contours of irremediable prejudice. Justice McKinnon ruled that irremediable prejudice cannot be decided in a factual vacuum or on a speculative foundation. Rather, in Marstar, it would have involved the company not being able to advance a defence because of lost evidence. I would add that the lost evidence has to flow from the delay in an 11(b) application. Justice McKinnon quoted Justice Weiler in a case called R. v. B. (J.G.), 2001, 151 C.C.C. (3d) 363 (O.C.A.). Justice Weiler on behalf of the Ontario Court of Appeal wrote that:

The fact that a piece of evidence is missing that might or might not affect the defence will not be sufficient to establish that irreparable harm has occurred to the right to make full answer and defence. Actual 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 evidence makes putting the position more difficult.

[64] The principle of advancing specific actual evidence was reinforced in 2006 by a unanimous panel of the Ontario Court of Appeal in R. v. Pioneer Construction, [2006] O.J. No. 1874 at paras. 24-26. Justice Weiler wrote that a general claim that the passage of time may have affected witnesses' memories or documents that could not be available without being specified was insufficient to claim a presumption of prejudice. There has to be some evidence of actual prejudice impairing the ability to make answer and full defence.

[65] Pioneer Construction was reinforced by the Court of Appeal in R. v. Norwall Group Inc., [2008] OJ No. 1222 (CA). The Court of Appeal issued a brief endorsement; the Court ruled that factually, even where employees are no longer employed at a company is not a sufficient basis to conclude actual prejudice.

[66] In the context of cases 11(b) arguments involving corporations, I also have considered and applied Justice Kehoe's decision in R. v. Deep Foundations Contractors Inc., an unreported decision from October 2, 2015 of the Ontario Court of Justice. Justice Kehoe in that decision underscored the lack of evidence regarding trial prejudice involving the company or any other prejudice (paras. 37, 38, 41). Deep Foundations is a decision from a judge in the Provincial Court and has greater binding authority than the Detox case both in terms of precedent and reasoning.

[67] Black & McDonald has not advanced specific actual prejudice amounting to irremediable prejudice.

CONCLUSION

[68] While there has been a delay that justifies an inquiry, such delay has not breached the company's fair trial rights. In terms of delay, the institutional delay is within acceptable judicial guidelines. There is no specific actual prejudice to the company that has affected fair trial rights. The inherent time periods requirements of eleven months took place in the context of a case that required a judicial pre-trial - both defence and Crown were content with the pace of proceedings. The actions of the accused and the Crown accounted for 4 months of the total delay. A period of 5.5 months (Feb. 24th, 2015 – May 26th, 2015) was considered neutral; during this time, both parties continued judicial pre-trials and pre-trial discussions.

[69] The FTR was provided a month before the trial. The HRSDC/ESDC file is in the exclusive possession and control of the Federal Crown regulator and is a third party record.

[70] A stay is a remedy of last resort. There is a societal interest in having the charges heard on the merits. Black & McDonald has not met its onus that there has been an 11(b) and/or 11(d) breach under the Charter.

[71] The corporate accused also seeks costs due to the Charter breaches. Even if I were to conclude there were Charter breaches, this is not one of those cases where there has been a "marked and unacceptable departure" from the conduct expected of the Prosecution nor is this a case where "fairness requires the individual litigant not carry the financial burden … from his or her involvement in the litigation". See R. v. 1820419 [2013] O.J. No. 143 at paras. 19, 22. A company was convicted without ever being issued a summons or served with notice it had been charged. It had no opportunity to defend itself. Through no fault of its own, the company was required to hire counsel to quash the erroneous conviction.

[72] The Charter applications including a request for a stay and costs are dismissed.

Released at the City of Brampton, March 1st, 2016

Signed: Justice of the Peace Duggal

Court File No: Mississauga Information No. 00591 Date: March 1, 2016