Court File and Parties

Date: October 10, 2017

Court File No.: 4960-999-15-18300000-00

Ontario Court of Justice

Between:

Her Majesty the Queen (Ministry of Labour)

— and —

Belle-Pak Packaging Inc.

Before: Justice of the Peace R.S. Shousterman

Application heard on: August 15, 2017

Reasons for Judgment released on: October 10, 2017

Counsel:

• T. Wong — Counsel for the Ministry of Labour
• A. Miedema — Counsel for Belle-Pak Packaging Inc.

JUSTICE OF THE PEACE R.S. SHOUSTERMAN:

Introduction

[1] This is an application by Belle-Pak Packing Inc. ("Belle-Pak") under s. 11(b) of the Charter of Rights and Freedoms ("the Charter") for an order staying the remaining charge as against Belle-Pak on the basis of delay.

[2] On June 4, 2014, Edwin Reola was injured while at work. Mr. Reola was working on a machine that made postal packing bags. He needed to lift a large roll of packing bags to a height of approximately four feet to load the roll into the bag machine. Mr. Reola was using a lifter. The platform of the lifter did not lift. Mr. Reola did not recall whether he asked his co-worker Mr. Rasarathnam or whether Mr. Rasarathnam volunteered to assist him by using a forklift that Mr. Rasarathnam was operating to raise the roll and the base of the lifter by inserting the forks of the forklift under the base of the lifter in order to raise the roll and the base of the lifter. The forks were inserted albeit in such a manner that the weight was not evenly distributed. As a result, the machine bounced. Mr. Reola, who had been standing behind the machine fell and the lifter fell on top of his body. The roll of packing bags also fell. They rolled backwards towards Mr. Reola and he stopped the movement with his arm. Mr. Reola suffered two broken bones in his lower back, a broken foot and bruising on his left shoulder.

[3] The information, setting out three counts under the Occupational Health and Safety Act, R.S.O. 1990, c. O.1, as amended, was sworn on May 27, 2015 with a first appearance date of June 26, 2015. The trial commenced June 12, 2017. On June 22, 2017, the crown invited the court to dismiss two out of the three charges. Trial dates have been booked through February 1, 2018.

[4] Belle-Pak submits that the total time from the date of the information was sworn until the anticipated completion of trial will be 32 months and 5 days. It acknowledges waiving a period of 6 months and 15 days due to a scheduling conflict thereby resulting in a net delay of 25 months and 25 days. Belle-Pak submits the net delay is above the presumptive ceiling of 18 months set out in R v Jordan, 2016 SCC 27 ("Jordan").

[5] Belle-Pak submits that the presumptive ceiling for unreasonable delay established under the Jordan framework applies to corporate defendants as well as personal defendants even though there is no mention of corporate defendants being covered by the presumptive ceiling set out in Jordan.

[6] Belle-Pak submits that with the exception of a waiver of 6 months and 15 days due to a scheduling conflict, it did not, either implicitly or explicitly, waive any other time periods nor did it cause any further delay. It submits that it did not bring any illegitimate applications or motions to cause any further delay. Accordingly, Belle-Pak submits that because the net delay is 25 months and 25 days, the 18 month ceiling under Jordan has been exceeded and therefore a stay is warranted unless the crown can establish the existence of exceptional circumstances on a balance of probabilities. It further submits that because this matter was in the system prior to the release of Jordan and the net delay remains presumptively unreasonable after accounting for and considering exceptional circumstances, the crown may nevertheless demonstrate that the transitional exceptional circumstance justifies the delay. Belle-Pak submits that the crown has not succeeded in either instance and therefore the application under s. 11(b) should be granted and the remaining charge stayed under s. 24(1) of the Charter.

[7] The crown raises two preliminary matters:

i. First, the crown submits that Jordan does not apply to regulatory matters as there is no mention of regulatory matters in Jordan, and

ii. Second, the crown submits that Jordan does not apply to corporate accused as there is no mention of corporate accused in Jordan.

[8] The crown submits that if Jordan does apply to both regulatory matters and to corporate accused then the application should not be granted as the delay falls below the 18 month ceiling described in Jordan as it is only 16 months and 14 days or, in the alternative, if the delay exceeds the 18 month ceiling then the transitional exceptional circumstance justifies the delay.

1. The Application of Jordan to Regulatory Matters

[9] It is well established that s. 11(b) of the Charter applies to regulatory matters. The Charter itself refers to "offence" rather than to, say "criminal charge". As His Worship Quon stated at paragraphs 82 – 83 in Mississauga (City) v Uber Canada Inc., 2016 ONCJ 746 ("Uber"):

82. The Supreme Court of Canada has held that the right to speedy trial guaranteed under s. 11(b) equally applies to prosecutions brought under regulatory or public welfare statutes as it does to criminal offences. This notion had been recognized by the Supreme Court in R v CIP Inc., [1992] S.C.J. No. 34 (S.C.C.), where the Supreme Court had held, at para. 44 that the Charter does not distinguish between types of offences, since an accused's interest in the availability and reliability of substantiating evidence will exist irrespective of the nature of the offence with which that person is charged. But more important, the Supreme Court had held that the right to be tried within a reasonable time is engaged when a person is charged with an offence [emphasis is mine below]:

In this case, the Provincial and District courts found that the main reason for the 19 month delay was the shortage of court facilities. That makes the delay "systemic or institutional" in nature, and the respondent bears the onus of justifying the inadequate resources (Askov at p. 1231). The appellant's trial was adjourned twice, apparently because of priority being given to Criminal Code matters. The respondent submits that the delay is justified solely on that basis. If I understand that argument correctly, the respondent is suggesting that because the appellant was charged with a regulatory offence, the allowable time frame for bringing it to trial should somehow be greater than it would be in other circumstances. I am not persuaded by that argument. The right to be tried within a reasonable time is engaged when a person is "charged with an offence". The Charter does not distinguish between types of offences, and it seems to me that doing so for the purposes of assessing the reasonableness of delay would unduly stretch the principles of contextual analysis. The interest of an accused in the availability and reliability of substantiating evidence will exist irrespective of the nature of the offence with which that person is charged.

83. Since this is a prosecution being tried in the Provincial Offences Court of the Ontario Court of Justice, the 18 month ceiling for provincial courts applies to the present 11(b) applications.

[10] There is no dispute that Jordan was a criminal matter, not a regulatory prosecution. Section 11(b) of the Charter applies to both regulatory and Criminal Code offences: R v 974649 Ontario Inc., [2001] 3 SCR; R v Ramsay, 2016 ONCJ 569. Accordingly, I do not find the crown's argument persuasive on this point.

2. The Application of Jordan to a Corporate Accused

[11] The crown submits that Jordan does not apply to corporate accused. He submits that Jordan does not overrule the Supreme Court of Canada decision in R v CIP Inc., [1992] 1 SCR 843 ("CIP"). He further submits that Jordan makes no reference to CIP and no reference to corporate accused. He submits that the lack of reference to corporate accused is intentional as the Supreme Court of Canada is presumed to know its own caselaw.

[12] The crown's argument has been raised in numerous prosecutions since Jordan was released. I have been provided with the decisions in Uber, R v Live Nation Canada Inc., 2016 ONCJ 735, R v Live Nation Canada Inc., 2017 ONCJ 590 ("Live Nation (2017)"), Ontario (Ministry of Labour) v Sterling Crane Division of Procrane Inc., 2016 ONCJ 692, and R v Stephensons Rental Services, 2017 ONCJ 466 ("Stephensons Rental"), all of which find that Jordan applies to corporations. I have not been provided with nor did I find a decision of the Court of Appeal on point. I did find a Quebec Superior Court decision that considered Jordan in the context of a corporate accused but the issue raised here was not considered: Industries Garantie Limitee c. R, 2017 QCCS 1504 ("Industries Garantie").

[13] There is no dispute that the Supreme Court of Canada is presumed to know its own caselaw. What the decision in Jordan does, is, essentially, to overrule the Supreme Court of Canada's decisions in R v Askov, [1990] 2 S.C.R. 1199 and R v Morin, [1992] 1 S.C.R. 771 ("Morin") except insofar as it applies to the transitional period for cases that were in the system prior to Jordan being released: Stephensons Rental at para. 32 and 33.

[14] It is in that context, namely the analysis of the transitional exceptional circumstance, and, in particular, reliance on the previous law, and only in that context, where the prejudice component pertaining to corporations set out in CIP remains good law.

[15] As the majority of the Supreme Court of Canada held at para. 44 – 45 in Jordan:

44 The intervenor Attorney General of Alberta submits that a change in courtroom culture is needed. This submission echoes former Chief Justice Lamer's two decades-old call for participants in the justice system to "find ways to retain a fair process…that can achieve practical results in a reasonable time and at reasonable expense" ("The Role of Judges", remarks to the Empire Club of Canada 1995 (online)).

45 We agree. And, along with other participants in the justice system, this Court has a role to play in changing courtroom culture and facilitating a more efficient criminal justice system, thereby protecting the right to trial within a reasonable time. We accept Mr. Jordan's invitation – which was echoed by the Criminal Lawyer's Association (Ontario), the British Columbia Civil Liberties Association, and Mr. Williamson in the companion appeal of R v Williamson, 2016 SCC 28(S.C.C.) – to revise the s. 11(b) analysis. While departing from a precedent of this Court "is a step not to be lightly undertaken" (Fraser v Ontario (Attorney General), 2011 SCC 20, [2011] 2 S.C.R. 3 (S.C.C.) at para. 56), as we have explained, "there are compelling reasons to do so" (R v Henry, 2005 SCC 76, [2005] 3 S.C.R. 609 (S.C.C.), at para. 44).

[16] As I understand the crown's submission, Jordan should not apply to corporate accused as a whole or, in the alternative, if Jordan applies then on the specific facts of this case, namely that this matter is a transitional case, the Morin analysis comes into play. Once the Morin analysis comes into play, and relying upon CIP, Belle-Pak is not able to establish prejudice and therefore the application should not be granted. I will return to the prejudice argument later in this decision when I discuss the Morin framework.

[17] I have some difficulty with the crown's submission. The purpose of s. 11(b) is to recognize that there is a constitutional right to a speedy trial. That right is largely, but not entirely, for the protection of an accused; society too has an interest in speedy justice; see, for example, R. v. MacDougall, [1998] 3 SCR 45 ("MacDougall") at para. 36.

[18] I disagree with the crown's submission that Jordan does not apply to corporate accused. Were I to accept such a submission then the end result would be a two tier system for corporate accused and personal defendants. Indeed, as personal and corporate defendants are often jointly charged, as in the Quebec case I referred above, inconsistency between defendants could easily occur. Moreover, this would dilute the concept of a legal person which includes inter alia corporations. As the Supreme Court noted in MacDougall, at para. 29: "The right to be tried within a reasonable time guaranteed by s. 11(b) of the Charter protects both an accused's interests and society's interests". The crown's submissions ignore the societal component of 11(b).

[19] Having found that Jordan applies, and prior to turning to the framework, I will deal with the chronology of the case.

3. The Chronology of the Case

[20] Mr. Reola was injured on June 4, 2014.

[21] A Part III Information was sworn May 27, 2015. A summons was issued that date.

[22] The first appearance was June 26, 2015. Belle-Pak's plant manager, Kenny Ramsundar appeared. Disclosure had not been provided. The matter was adjourned to September 11, 2015 for Belle-Pak to receive and review disclosure.

[23] Dentons Canada LLP was retained August 24, 2015. Mr. Miedema acknowledged receipt of disclosure.

[24] On September 10, 2015, Ms. Rasmussen wrote Mr. Nicol (the then crown) to request a one month adjournment as Dentons had only recently been retained. The crown consented to the adjournment. On September 11, 2015, the matter was adjourned to October 30, 2015.

[25] On October 30, 2015, a judicial pre-trial was scheduled for January 22, 2016.

[26] On January 22, 2016, the judicial pre-trial was adjourned to be continued before His Worship Solomon on May 13, 2016.

[27] On May 13, 2016, trial dates of November 28 – 30, 2016 were set. A confirmation hearing was scheduled for October 19, 2016.

[28] On October 11, 2016, Mr. Miedema wrote Mr. Nicol advising of a scheduling conflict in the Superior Court of Justice and requested an adjournment of the trial dates. Belle-Pak agreed, in writing, to waive its rights under s. 11(b) from November 28, 2016 until the commencement of the new trial.

[29] On October 13, 2016, Mr. Nicol advised Mr. Miedema that the Newmarket court required the parties to attend the confirmation hearing with their available dates in June 2017.

[30] On October 19, 2016, the November trial dates were vacated and new trial dates of June 12, 21 and 22, 2017 were set. Discussions pertaining to waiver were held. I will deal with this further in my decision when I discuss the issue of defence delay.

[31] On May 1, 2017, new crown counsel advised Mr. Miedema that three crown witnesses required interpreters. This was the first time the issue of interpreters was raised. The crown advised she proposed having the Tagalog interpreter attend the first day of trial and the Tamil interpreter the second. Mr. Miedema did not take any issue with the crown's proposed scheduling of the interpreters.

[32] The crown delivered further disclosure on March 14 and 22, April 22, and May 19 and 30, 2017.

[33] On June 12, 2017, trial opened before me. Further trial dates of January 17 and February 1, 2018 were booked. The date of January 2, 2018 was put on hold to be confirmed by myself on or before June 22, 2017.

[34] On June 21, 2017, the continuing trial date of January 2, 2018 was confirmed. Further dates of August 15 and October 10, 2017 were also made available. The August 15, 2017 date was confirmed for trial continuation with the October 10, 2017 date to be used for the hearing of the s. 11(b) application. A timetable was set up for the delivery of the s. 11(b) material.

[35] On June 22, 2017, the crown asked me to dismiss two out of the three counts on the Information. The trial was adjourned to August 15, 2017. The parties agreed to notify me by July 21, 2017, if Mr. Rasarathnam had been located and, if so, whether they wished to proceed on August 15 or have me vacate that date. I was subsequently notified that Mr. Rasarathnam could not be located and the parties asked if I was amenable to moving the date for the s. 11(b) application from October 10, 2017 to August 15, 2017. I agreed.

[36] On August 15, 2017, the s. 11(b) application was argued. I reserved my decision to October 10, 2017 (the date initially set for the hearing of the application).

[37] The trial dates of January 2 and 17, as well as February 1, 2018, remain booked.

4. The Jordan Framework

[38] The framework is set out at paragraphs 46 – 48 and further summarized at paragraph 105 of Jordan as follows:

46 At the heart of the new framework is a ceiling beyond which delay is presumptively unreasonable. The presumptive ceiling is set at 18 months for cases going to trial in the provincial court, and at 30 months for cases going to trial in the superior court (or cases going to trial in the provincial court after a preliminary inquiry).

47 If the total delay from the charge to the actual or anticipated end of trial (minus defence delay) exceeds the ceiling, then the delay is presumptively unreasonable. To rebut this presumption, the Crown must establish the presence of exceptional circumstances. If it cannot, the delay is unreasonable and a stay will follow.

48 If the total delay from the charge to the actual or anticipated end of trial (minus defence delay or a period of delay attributable to exceptional circumstances) falls below the presumptive ceiling, then the onus is on the defence to show that the delay is unreasonable. To do so, the defence must establish that (1) it took meaningful steps that demonstrate a sustained effort to expedite the proceedings, and (2) the case took markedly longer than it reasonably should have. We expect stays beneath the ceiling to be rare, and limited to clear cases.

105 The new framework for s. 11(b) can be summarized as follows:

There is a ceiling beyond which delay becomes presumptively unreasonable. The presumptive ceiling is 18 months for cases tried in the provincial court, and 30 months for cases in the superior court (or cases tried in the provincial court after a preliminary inquiry). Defence delay does not count towards the presumptive ceiling.

Once the presumptive ceiling is exceeded, the burden shifts to the Crown to rebut the presumption of unreasonableness on the basis of exceptional circumstances. Exceptional circumstances lie outside the Crown's control in that (1) they are reasonably unforeseen or reasonably unavoidable, and (2) they cannot reasonably be remedied. If the exceptional circumstance relates to a discrete event, the delay reasonably attributable to that event is subtracted. If the exceptional circumstance arises from the case's complexity, the delay is reasonable.

Below the presumptive ceiling, in clear cases, the defence may show that the delay is unreasonable. To do so, the defence must establish two things: (1) it took meaningful steps that demonstrate a sustained effort to expedite the proceedings; and (2) the case took markedly longer than it reasonably should have.

For cases currently in the system, the framework must be applied flexibly and contextually, with due sensitivity to the parties' reliance on the previous state of the law.

[39] I now turn to the application of the framework to the case at bar.

(a) Total Delay

[40] The information was sworn May 27, 2015. Trial commenced before me on June 12, 2017. The trial is expected to be completed on February 1, 2018.

[41] Accordingly, the amount of time involved is 32 months and 5 days.

(b) Defence Delay

[42] Defence delay is divided into two components: (i) delay waived by the defence and (ii) delay that is caused by the conduct of the defence: Jordan, at para. 61 and 63.

i. Waiver

[43] Belle-Pak acknowledges that it waived a period of 6 months and 15 days. This waiver was due to defence counsel's scheduling conflict. The crown was advised that Belle-Pak would be seeking to vacate trial dates scheduled for November 2016 due to a scheduling conflict.

[44] On October 11, 2016, Mr. Miedema wrote (then) crown counsel Mr. Nicol to confirm a telephone conversation in which Mr. Miedema advised that he had a scheduling conflict. He requested the crown consent to an adjournment of the November 2016 trial dates and advised that "Belle-Pak will waive its right to assert unreasonable delay under section 11(b) of the Canadian Charter of Rights and Freedoms in respect of the period from November 28 until the commencement of the new trial".

[45] Mr. Nicol consented to the adjournment and new trial dates of June 12, 13 and 21, 2017 were scheduled on October 19, 2016.

[46] I have read the transcript of the court appearance before His Worship Solomon on October 19, 2016. At page 3, commencing at line 20, Mr. Nicol indicates that the defence waived its rights under s. 11(b) from October 19, 2016 – June 21, 2017. That is not what Mr. Miedema's letter says.

[47] Further, at page 6, commencing at line 20, the parties were advised later that morning that the trial coordinator had erred, that June 13, 2017 was not available but instead the date of June 22, 2017 was. The parties consented to the date of June 13, 2017 being vacated and the date of June 22, 2017 added. Once again Mr. Nicol indicated that s. 11(b) was to be waived through June 22, 2017. Mr. Nicol asked Mr. Miedema's student-at-law to confirm this was correct and she did so.

[48] Again, that is not what Belle-Pak had agreed to do. The waiver as set out in counsel's letter was clear and unequivocal. It was explicit. I was not provided with any correspondence that suggests the crown did not agree to the defence waiving its rights under s. 11(b) from November 28, 2016 until June 12, 2017.

[49] There is no doubt that the student-at-law was not prepared for Mr. Nicol's statement regarding the time period to be waived. Mr. Nicol expanded the time period that had been agreed upon by him and counsel. I will not comment further except to say the court did not have the terms of the actual agreement between Mr. Nicol and Mr. Miedema and as a result the court was misled.

[50] At paragraph 79 of its factum the crown acknowledges the waiver was to run from November 28, 2016 – June 12, 2017.

[51] Having acknowledged this the crown submits that it is not fair for the waiver to run only until the first day of the new trial dates but instead should run through to June 22, 2017. The crown submits that failing to do so results in a longer period of delay which is advantageous to the defence.

[52] I am not persuaded by this argument. While waiver can be implicit or explicit, it must be clear and unequivocal: Jordan at para. 61. Mr. Miedema's letter was that. If the crown did not want to accept the time period Belle-Pak agreed to waive, it should have advised the defendant that it would only consent to an adjournment if a longer period of time was to be waived. The crown did not do so.

[53] I therefore find that the defence agreed to waive the time period from November 28, 2016 until June 12, 2017, being a period of 6 months and 15 days.

ii. Conduct of the Defence

[54] The first appearance date was June 26, 2015. On that date Belle-Pak's plant manager, Kenny Ramsundar, appeared. Disclosure had not been received. Accordingly, the matter was adjourned to September 11, 2015 so that Belle-Pak could receive and review disclosure, as well as retain counsel.

[55] Mr. Miedema's firm was retained on August 24, 2015. Mr. Miedema acknowledged receipt of disclosure. On September 10, 2015, Ms. Rasmussen contacted the crown to request a one month adjournment as the firm had been recently retained. The crown consented to the adjournment and the matter was adjourned to October 30, 2015.

[56] The crown submits that Belle-Pak delayed matters by one month and 19 days by seeking an adjournment from September 11, 2015 until October 30, 2015.

[57] In support of this the crown submits that Belle-Pak had received disclosure shortly after the first appearance date of June 26, 2015. The second appearance date was scheduled for September 11, 2015 to provide Belle-Pak with the opportunity to retain counsel and to review disclosure, which it appeared to have done.

[58] Belle-Pak submits that the September 11, 2015 adjournment request was a legitimate procedural requirement of the case and therefore Belle-Pak should not bear sole responsibility or, indeed, any responsibility for this one month and 19 day delay.

[59] On the facts of this case, I cannot find that the request to adjourn was a deliberate and calculated tactic employed to delay trial. It was a simple, commonplace adjournment request for a one month and 19 day period to enable counsel to review disclosure. As the Supreme Court of Canada stated at paragraphs 31 and 32 in R v Cody, 2017 SCC 31:

31 The determination of whether defence conduct is legitimate is "by no means an exact science" and is something that "first instance judges are uniquely positioned to gauge" (Jordan, at para. 65). It is highly discretionary, and appellate courts must show a correspondingly high level of deference thereto. While trial judges should take care to not second-guess steps taken by defence for the purposes of responding to the charges, they must not be reticent about finding defence action to be illegitimate where it is appropriate to do so.

32 Defence conduct encompasses both substance and procedure – the decision to take a step, as well as the manner in which it is conducted, may attract scrutiny. To determine whether defence action is legitimately taken to respond to the charges, the circumstances surrounding the action or conduct may therefore be considered. The overall number, strength, importance, proximity to the Jordan ceilings, compliance with any notice or filing requirements and timeliness of defence applications may be relevant considerations. Irrespective of its merit, a defence action may be deemed not legitimate in the context of a s. 11(b) application if it is designed to delay or if it exhibits marked inefficiency or marked indifference toward delay.

[60] Here, defence counsel was retained within less than two months after the first appearance date. The defendant was not provided with disclosure at the first appearance date. Instead, Belle-Pak was advised that disclosure had been sent out and it should arrive either later that day or shortly thereafter. Belle-Pak provided the disclosure it had received to counsel at or around the time of retainer.

[61] I do not find that a one month and 19 day request to adjourn to review disclosure is unreasonable. By my calculation, that would have provided Belle-Pak's counsel with a little bit more than six weeks to review disclosure prior to moving the case forward by setting a date for a judicial pre-trial. Further, there was no evidence that had the September date not been adjourned that the court would have been able to accommodate an earlier pre-trial date.

(c) Net Delay

[62] Both parties agree that the total delay from the date the information was sworn until the anticipated end of trial is 32 months and 5 days. Defence delay is 6 months and 15 days. The net delay is therefore 25 months and 25 days.

[63] Even if I am incorrect in finding that the one month and 19 day adjournment should not be counted as defence delay that would reduce net delay to 24 months and 6 days.

[64] Both time periods exceed the ceiling of 18 months and are presumptively unreasonable. It therefore falls to the crown to demonstrate that the delay is reasonable in light of exceptional circumstances: Jordan, at para. 68.

(d) Exceptional Circumstances

[65] An exceptional circumstance is the only basis upon which the crown can discharge its burden to justify a net delay that exceeds the ceiling. The seriousness or gravity of the offence cannot be relied on. Nor can chronic institutional delay or the absence of prejudice to the accused: Jordan, at para. 81.

[66] The list of exceptional circumstances falls into two subcategories: discrete events and complex cases: Jordan, at para. 71.

[67] The crown submits there were two discrete events:

(i) the failure of the Tagalog interpreter to attend the first morning of trial, and

(ii) the failure of Mr. Rasarathnam to attend trial.

[68] The crown submits that these two discrete events result in a delay from June 22, 2017 – February 1, 2018 or 7 months and 10 days. The crown submits that when this period is deducted from the net delay, it results in a remaining delay which is less than the 18 month presumptive ceiling.

[69] The decision in Live Nation (2017) at para. 49 defines a discrete event as "an event that causes delay which is reasonably unavoidable and unforeseen." Discrete events lie outside the crown's control in that: (1) they are reasonably unforeseen or reasonably unavoidable; and (2) crown counsel cannot reasonably remedy the delays emanating from the circumstances once they arise. Such circumstances need not be rare or entirely uncommon: Jordan, at para. 69.

(i) The Failure of the Interpreter to Attend

[70] The crown submits the failure of the Tagalog interpreter to attend court the morning of June 12, 2017 is a discrete event and therefore an exceptional circumstance.

[71] The Tagalog interpreter had been ordered and confirmed for June 12, 2017. That notwithstanding, she did not attend court the morning of June 12, 2017 as she was in London, Ontario.

[72] The court spent about half the morning waiting to hear from the interpreter. When finally reached, the interpreter advised it was a scheduling mix up. The trial did not start until after 10:30 am when both counsel agreed that Mr. Vo, the expert witness, could be called out of order. The trial opened and a voir dire on Mr. Vo's qualifications was conducted. Once complete, the trial resumed with Mr. Vo introducing numerous photographs into evidence.

[73] The Tagalog interpreter attended the afternoon of June 12, 2017 but the two crown witnesses who required her services had to leave because they had omitted to bring their diabetes medication with them.

[74] This was not a situation where there was a medical or family emergency on behalf of any of the parties, counsel or the court. The failure of Mr. Reola and Mr. Gualberto to bring their diabetes medication with them was an oversight.

[75] The Tagalog interpreter was available to attend the afternoons of June 21 and 22, 2017. On June 21, 2017, Mr. Reola testified. Mr. Gualberto was not called by the crown.

[76] With respect to the failure of the Tagalog interpreter to attend, I do not find that this was an exceptional circumstance. As the interpreter explained to the court, it was a mix up in scheduling. She did attend the afternoon of June 12, 2017 but since Mr. Reola and Mr. Gualberto could not remain, her services were not required. Instead, the testimony of Mr. Reola and Mr. Gualberto was adjourned to the afternoon of June 21, 2017 when the Tagalog interpreter and both crown witnesses could attend.

[77] The crown elected not to call Mr. Gualberto. The Tagalog interpretation was completed on June 21, 2017.

[78] The crown submits the failure of the Tagalog interpreter to appear when ordered was a discrete event. He submits that had the interpreter appeared when ordered to do so, then the trial would have concluded on June 22, 2017. I disagree. As the trial justice, it quickly became apparent to me that the requirement for two interpreters for three crown witnesses was going to prolong the three days set for trial. I was the person who raised the issue of trial time and at my request new trial dates were canvassed and set on June 12, 2017. The defence expressed concerns regarding delay as the first available date for the continuation of the trial was January 2, 2018, almost seven months later. The scheduling of the s. 11(b) application was set on June 21, 2017.

[79] The crown's letter of May 1, 2017 indicates that the issue of interpretation had not been contemplated at the time the trial dates were set. This is concerning. The crown should have known whether any of their witnesses required an interpreter. This should have been canvassed at the pre-trial and/or at the confirmation hearing. Counsel are required to give the best time estimates they can when booking trial dates. Interpretation adds to the time required for trial: R v Martinez, 2012 ABQB 317.

(ii) The Failure of Mr. Rasarathnam to Attend

[80] On June 21, 2017, the Tamil interpreter attended at 9 am to provide interpretation for the crown's witness, Mr. Rasarathnam. Mr. Rasarathnam was summonsed to appear. He did not. Efforts were made to locate him, without success. The court was told he had left Belle-Pak's employment sometime after the incident and that it was thought he had returned to Sri Lanka. Messages were left for him. No reply was received. I released the Tamil interpreter at 10:30 am and the court stood down until the afternoon.

[81] The crown chose not to ask the court to issue a bench summons for Mr. Rasarathnam to appear on August 15, 2017 which was the next trial date after June 22, 2017. Instead, the crown advised it would not call Mr. Rasarathnam. On June 22, 2017, the crown closed its case and asked the court to enter dismissals of two out of the three charges.

[82] Belle-Pak indicated it would open its case by calling Mr. Rasarathnam on August 15, 2017. Belle-Pak was not able to locate Mr. Rasarathnam and the s. 11(b) argument scheduled for October 10, 2017 was brought forward to August 15, 2017.

(iii) Complexity

[83] This is not a complex case. Mr. Reola was injured while at work. Belle-Pak, his employer, was charged. None of the offences involve novel or complex points of law. Initially the crown was going to call four witnesses, one of whom was an expert. The crown called only two witnesses before closing its case: the injured worker and their expert.

(iv) Conclusion

[84] There is no doubt the crown attempted to mitigate the delay by not calling Mr. Gualberto and by not asking the court to issue a bench summons for Mr. Rasarathnam. Having chosen to shorten its case so as to be able to complete it within the three days set for trial, the crown sought a dismissal of two out of the three charges.

[85] The issue though was not whether the crown was able to complete its case within the three days allotted for trial, it is that the trial itself could not be completed within the three day time frame.

[86] The failure of the witness to attend is not an uncommon occurrence in the provincial offences courts. The failure of the interpreter to attend due to scheduling is also not an uncommon occurrence in the provincial offences courts.

[87] In conclusion I do not find that there were any exceptional circumstances and therefore the crown has not discharged its burden. In light of this, I do not find that the delay falls below the presumptive ceiling.

[88] If, however, I am incorrect and there was a discrete event, then following Cody, the inability of the court to accommodate new dates thereby resulting in a further delay of 7 months and 10 days "was therefore a product of systemic limitations in the court system and not of the discrete event (Jordan, at para. 81) and therefore those months should not be deducted": Cody, at para. 55.

[89] The net delay therefore remains at 25 months and 25 days. Even if the one month and 19 day adjournment is attributed to Belle-Pak the analysis will remain the same. I will not comment on the one month and 19 day adjournment further.

[90] I now turn to whether the crown has established that the delay fits within the transitional exceptional circumstance.

5. Transitional Exceptional Circumstance

(i) Reliance on the Previous Law

[91] In this case, almost all of the delay occurred post release of Jordan. That notwithstanding, a presumptively unreasonable delay can be justified under the transitional exceptional circumstance if it is shown that, on a correct assessment of the law as it previously existed, the time the case has taken is justified and the parties reasonably relied on the previous state of the law: Jordan, at para. 96; R v Picard, 2017 ONCA 692 ("Picard") at para. 70.

[92] To determine whether a transitional exceptional circumstance justifies a delay above the presumptive ceiling, the court must conduct a contextual assessment of all the circumstances: R v Manasseri, 2016 ONCA 703 ("Manasseri").

[93] In R v Williamson, 2016 SCC 28, the Supreme Court of Canada identified the following relevant circumstances to be considered in a contextual analysis:

i. the complexity of the case;

ii. the period of delay in excess of the Morin guidelines;

iii. the crown's response, if any, to institutional delay;

iv. the defence efforts, if any, to move the case along; and

v. prejudice to the accused: Manasseri, at para 321; Picard, at para. 71; R v Paauw, 2016 ONSC 7394 ("Paauw") at para 59.

[94] In terms of the complexity analysis under Jordan, I have previously found this case to be neither factually nor legally complicated. I have also considered what the Court of Appeal stated in Picard at para. 73:

[73] The complexity of the case appears to have played no further role in the trial judge's analysis of the transitional exceptional circumstance. This was an error. As was stated recently in R v Pyrek, 2017 ONCA 476, at para. 30, "although this case was not sufficiently complex to meet the requirement of exceptional circumstances under Jordan, for transitional cases moderate complexity bears on the reasonableness of the delay".

[95] I do not find that this case was moderately complex. It was a straight forward prosecution under the Occupational Health and Safety Act. I say this for the following reasons:

1. Belle-Pak was charged with three counts under the Occupational Health and Safety Act as a result of an injury Mr. Reola sustained while at his place of employment being Belle-Pak. The legal issues are neither novel nor complex. While the injury was serious, Mr. Reola was eventually able to return to work albeit doing slightly modified duties. Belle-Pak did not dispute that Mr. Reola was injured while at work.

2. The case proceeded promptly through the system. Disclosure was provided, albeit some of it late. A pre-trial was held without success and the matter was set for trial. The original trial dates were vacated at the confirmation hearing and new trial dates were set.

3. The crown intended to call four witnesses, consisting of Mr. Reola, some of his co-workers, and an expert. Three of the crown witnesses required interpreters. The crown's expert, Mr. Vo, delivered his report in a timely fashion. The defence did not retain its own expert.

The number of crown witnesses to be called was nothing out of the ordinary. Mr. Reola, as the injured party, needed to testify. The person operating the forklift needed to testify but he did not appear. The crown's expert was qualified as an expert witness and his evidence was straight forward as to how the accident took place.

The requirement for multiple interpreters is not uncommon for cases prosecuted in the Regional Municipality of York ("the region"). On any given day, the provincial offences courts in the region generally require a Mandarin/Cantonese, a Farsi and a Tamil interpreter. Russian, Ukrainian, Hebrew, Greek, Arabic, Turkish, Vietnamese, Urdu, Punjabi, Pashtun and Tagalog interpreters are often required, albeit not on an almost daily basis as the four mentioned above. Less common languages including but not limited to Armenian, Albanian, and Cambodian also have interpreters but they are more rarely used. French matters are dealt with in a separate French court. This last point is important because generally trials with multiple interpreters are neither unusual nor add any material complexity to cases prosecuted in the region.

Morin

[96] Justice Sopinka summarized the general approach to be applied to a s. 11(b) application in Morin at page 787:

The general approach to a determination as to whether the right has been denied is not by the application of a mathematical or administrative formula but rather by a judicial determination balancing the interests which the section is designed to protect against factors which either inevitably lead to delay or are otherwise the cause of delay.

[97] This approach to a s. 11(b) issue was reiterated in R v Godin, 2009 SCC 26 at paragraph 18:

[18] The legal framework for the appeal was set out by the Court in Morin at pp. 786 – 789. Whether delay has been unreasonable is assessed by looking at the length of the delay, less any periods that have been waived by the defence, and then by taking into account the reasons for the delay, the prejudice to the accused, and the interests that s. 11(b) seeks to protect. This often and inevitably leads to minute examination of particular time periods and a host of factual questions concerning why certain delays occurred. It is important, however, not to lose sight of the forest for the trees while engaging in this detailed analysis.

[98] The factors to be considered in determining whether an accused person's s. 11(b) rights have been infringed are:

i. The length of the delay,

ii. Whether the accused has waived any time periods,

iii. The reasons for the delay, and

iv. The issue of prejudice to the accused.

[99] I will deal with each of those factors.

i. Length of the Delay

[100] The total amount of time from when the charge was laid until the anticipated conclusion of trial is 32 months and 5 days. This amount of time is prima facie excessive and therefore warrants further scrutiny.

ii. Waiver

[101] I have previously found that Belle-Pak waived 6 months and 15 days.

iii. Reasons for the Delay

[102] This factor is broken down into five sub-categories:

(a) The inherent time requirements of the case,

(b) Actions of the accused,

(c) Actions of the crown,

(d) Limits on institutional resources, and

(e) Other reasons for the delay.

(a) Inherent Time Requirements of the Case

[103] The Part III information was sworn May 27, 2015. The first appearance date was June 26, 2015. The pre-trial was completed May 13, 2016 and the November 2016 trial dates were set.

[104] The intake period was therefore 11 months and 16 days. I recognize the somewhat unreasonable length of the intake period however it provided the parties sufficient time to get organized, deal with disclosure and conduct the pre-trial.

[105] A reasonable intake period is inherent in all cases and so considered neutral time in the s. 11(b) analysis. It is also recognized that the holding of a judicial pre-trial is a necessary and desirable aspect of the proceedings and that the time required to schedule, prepare for and conduct the pre-trial is part of the inherent time requirements of the case: R v Nguyen, 2013 ONCA 169.

(b) Actions of the Accused

[106] There are certain instances where the defence bears responsibility for some of the delay. Aside from the time that was waived, I do not find that Belle-Pak caused any other delay.

[107] Further, when it became apparent to Belle-Pak that Mr. Rasarathnam could not be located, the parties agreed to bring forward the s. 11(b) application from October to August 15, 2017. As an aside, both the crown and defence are to be commended for being pro-active.

(c) Actions of the Crown

[108] The crown underestimated the time for trial. It was not until May 1, 2017 or thereabouts that new crown counsel discovered that three out of her four witnesses would require the assistance of interpreters. No one has provided any explanation as to how the crown could not know what languages its witnesses speak. These witnesses would have been interviewed by the investigator and the need for interpretation, as well as the language of interpretation, should have been noted. Unlike the situation in Live Nation (2017), the crown was responsible for the under estimation of the time required for trial and Belle Pak cannot be held to have failed to correct what was an incorrect time estimate. The crown should have known the special needs of its own witnesses and Belle Pak cannot be said to have stood silent in the face of knowledge the trial time suggested was incorrect.

[109] I note that the failure of an interpreter to attend may, or may not, count against the crown for an 11(b) application depending on the factual circumstances. Here the interpreter was ordered and the delay is attributed against the crown. As Justice Bourque noted in R. v. Sintra, 2016 ONCJ 101 at para 21:

There is no doubt in my mind that if the request for the interpreter was made on the record and the system failed to provide one, then that would fall upon the shoulders of the system, and the following delay would be on the system and count toward the delay for 11(b) purposes.

See also Paauw, Martinez, R. v Sran, 2012 ONCJ 19, and R. v. Bhullar, 2015 ONSC 3299.

(d) Limits on Institutional Resources

[110] Institutional delay starts to run when the parties are ready for trial but the system cannot accommodate them. As the Court of Appeal held in R v Cranston 2008 ONCA 751:

To provide guidance on the approximate permissible scope of institutional delay, the Supreme Court of Canada in Morin set out the following guidelines: eight to ten months in the Ontario Court of Justice and six to eight months in the Superior Court of Justice. These are not limitation periods. Rather, they are factors to be weighed in the overall assessment of the reasonableness of the total delay.

[111] The region has six Provincial Offences trial courts: four in Newmarket and two in Richmond Hill. Each location also has an intake court.

[112] Efforts are made by the trial co-ordinators to ensure that long trials are scheduled in a timely fashion. That has not always been able to happen due to matters outside the control of the trial co-ordinators. There have been systemic delays in the system caused by a lack of resources. These delays cannot be laid at the foot of Belle Pak.

[113] Here, there are two periods that need be considered:

First, the period from May 13, 2016 to the original trial dates commencing November 28, 2016, and

Second, the period from June 22, 2017 to February 1, 2018.

[114] The first time period was a period of six months and 15 days. This comes within the eight to ten months guideline suggested by Morin.

[115] The crown provided further disclosure to the defence throughout the early part of 2017. Belle-Pak did not seek a further adjournment as a result of the late delivery of disclosure.

[116] Of course, had trial commenced in November 2016, there would have been a problem with disclosure at that time and, in all probability, the November trial dates would have either been vacated or adjourned so that the defence could review the new disclosure.

[117] The second timeframe deals with the fact that the trial was not completed within the timeframe initially booked for trial which meant that the trial had to be adjourned a further seven months and 10 days until it is anticipated to be completed.

[118] When both periods of institutional delay are added together this results in 13 months and 25 days. This is in excess of the eight to ten months guideline. I am prepared to deduct one month for the need for the defence to prepare for trial. This was not a complicated case. There was only one expert witness.

[119] Further, trial preparation could have also been done during the adjournment of the November trial dates to the June 2017 trial dates. So as to avoid duplication I believe this amount of time is more than sufficient to prepare for a relatively straight forward matter.

[120] The question for this court to determine is whether the guideline should be adjusted for local conditions and changing circumstances. In this case, there is no evidence before me that suggests an adjustment would be required, especially an upward adjustment. For greater certainty, there is no evidence that the region is plagued by lengthy, persistent and/or notorious delay.

(e) Other Reasons for Delay

[121] There are no other reasons for delay.

[122] Accordingly, I find that the delay would have been unreasonable under Morin.

iv. Prejudice

[123] Belle-Pak submits that the failure of Mr. Rasarathnam to attend and the failure to locate him so that he could attend another day caused irremediable prejudice to its fair trial interests as determined by CIP. In a nutshell, Belle-Pak submits Mr. Rasarathnam's failure to attend has impacted Belle-Pak's ability to make full answer and defence.

[124] Mr. Rasarathnam is an important witness. He was the employee who drove the forklift. Mr. Reola testified he did not recall whether he had requested Mr. Rasarathnam assist him or whether Mr. Rasarathnam had volunteered to do so. Mr. Vo testified the tines of the forklift were not properly situated under the lifter thereby causing it to become unstable and resulting in the accident.

[125] The remaining charge is that Belle-Pak failed to ensure that the measures and procedures prescribed by s. 45(a) of Ontario Regulation 851 were carried out, contrary to s. 25 (1) (c) of the Occupational Health and Safety Act.

[126] Section 45(a) of the regulation states:

Material, articles or things,

(a) required to be lifted, carried or moved, shall be lifted, carried or moved in such a way and with such precautions and safeguards, including protective clothing, guards or other precautions as will ensure that the lifting, carrying or moving of the material, articles or things does not endanger the safety of any worker.

[127] Section 25 (1)(c) of the act states:

An employer shall ensure that,

(c) the measures and procedures prescribed are carried out in the workplace.

[128] Mr. Rasarathnam's testimony could have provided clarity in answering the charge.

[129] Mr. Rasarathnam was served with a summons. He did not appear. Both the crown and Belle-Pak attempted to contact him on June 21, 2017, without success. This is not the situation where someone was not compellable; here the witness was compelled to attend court and he chose not to. His failure to attend, compounded with the inability of both parties to contact him, meant he could not testify as to what precautions and/or safeguards were used. While he was not the employer, nonetheless he was the person who operated the forklift. In my opinion, his absence is clearly prejudicial to Belle-Pak's ability to make full answer and defence to the remaining charge.

v. Balancing

[130] The defendant has a constitutional right to have a trial in a timely fashion. This was not done. The length of the delay is a concern. The original charges, and now the remaining charge, are not overly complicated.

[131] The fact that the initial time estimates for trial did not take into account the requirement for the provision of two interpreters for three out of the four crown witnesses necessitated further time being set aside. The crown was aware of this problem as of May 2017 and I addressed it on the first day of trial. There is no doubt that the crown had not turned its mind to their witness' requirements at the time the original and then the second trial dates were set.

[132] The crown is not, in my opinion, responsible for Messrs. Reola and Gualberto not thinking to bring their medication with them on the first day of trial. But the crown is, in my opinion, responsible for not turning its mind to the issue of interpreters and to the lengthening of the trial that interpretation would take.

[133] At the end of the day, the crown miscalculated the time it would take to complete the trial.

[134] A final factor the court must consider is the seriousness of the offence.

[135] It is settled law that the Occupational Health and Safety Act is a remedial public welfare statute, designed to promote public safety and prevent harm. See: R v Timminco Ltd. (2001), 54 O.R. (3d) 21 and Ontario (Ministry of Labour) v Hamilton (City) (2002), 58 O.R. (3d) 37. However, as the Court of Appeal noted in Blue Mountain Resorts Limited v Ontario (Labour), 2013 ONCA 75 at paras. 26 – 27, a generous approach to the interpretation of public welfare statutes is not without limits. An overly broad interpretation can extend the reach of the legislation far beyond what was intended by the legislature.

[136] In the case before me, while the accident resulted in injuries to a worker, and should be taken seriously, it is by no means the most serious and grave of industrial accidents, nor are the circumstances surrounding it in any way unique. Mr. Reola was injured, and suffered pain, but he was eventually able to return to work.

[137] While the offence is serious, it is not one of the most serious offences under the Occupational Health and Safety Act. In my view, applying the Morin framework, the delay is unreasonable.

(ii) Conclusion on the Transitional Exceptional Circumstance

[138] I now turn to the final step in the Jordan analysis, namely, whether in all the circumstances the delay is justified by the transitional exceptional circumstance. In my opinion it is not. Both the crown and the defence knew of the change in the law in advance of the confirmation hearing which took place on October 19, 2016.

[139] There is no doubt that the region has systemic delay issues but those issues have not impacted on this case. Regardless, a total delay of 32 months and 5 days excluding defence delay is simply unreasonable regardless of which framework the crown was operating under.

[140] In this case, the delay resulted from the inaccurate assessment of time required for the case as the crown did not turn its mind to the requirement of two interpreters for three out of four of their witnesses and how this would prolong the trial. I have previously indicated that the crown, upon being told by myself that the case would require more trial time, did its best to expedite matters by deciding not to call Messrs. Gualberto and Rasarathnam.

[141] Having done so, the crown then asked the court to dismiss two out of the three charges on June 22, 2017. This took the defence by surprise as it needed to reconsider its defence and attempt to locate Mr. Rasarathnam to now call him as a witness for the defence.

[142] This is not a difficult case. I have read all the caselaw provided to me, as well as the decision of the Court of Appeal in Picard which was released as I was writing this decision, and the decision of the Quebec Superior Court in Industries Garanties.

[143] The crown has not proven the transitional exceptional circumstance.

[144] In conclusion, I would allow the s. 11(b) application and grant the stay.

[145] I want to thank counsel for their detailed, careful and thoughtful submissions which have been of great assistance to me in coming to this decision.

October 10, 2017

R.S. Shousterman