Court File and Parties

Ontario Court of Justice

Date: 2020-06-11

Court File No.: HAMILTON 14-2196

Between:

Her Majesty the Queen

— AND —

Ministry of Labour RESPONDENT

And

George Roque Roofing Corp. o/a GRRC Roofing APPLICANT

Before: Justice P.H.M. Agro

Heard on: October 8, 2019

Reasons for Ruling released on: Thursday, June 11, 2020

Counsel:

• Mr. Richard Simmons — counsel for the Respondent Crown
• Mr. Marco Galluzzo — counsel for the Applicant accused George Roque Roofing o/a GRRC Roofing

Reasons for Ruling

Introduction and History of Proceedings

[1] This is an application by the accused corporation for a stay of proceedings based on an alleged breach of the applicant's section 11(b) Charter right to be tried within a reasonable time.

[2] The matter arises out of a worksite injury suffered by an employee of the applicant on 31 July 2013. A worker was struck by planks of wood that fell 10 stories whilst being hoisted onto a roof. The incident rendered him unconscious at the scene with injuries that included bruising on the brain, fractured vertebrae, broken ribs and sternum, fractured pelvis and lacerated kidney and spleen.

[3] After an investigation by the Ministry of Labour, an information was sworn on 26 June 2014 alleging four offences by the applicant under the Occupational Health and Safety Act.

[4] The applicant's first appearance was on 2 September 2014.

[5] After multiple appearances and adjournments, the trial commenced on 22 April 2016 and continued on 25 April 2016. It was determined that four additional days would be required to complete the matter.

[6] R v Jordan, the binding authority on matters of delay, was released on 8 July 2016.

[7] The evidence continued to completion on 30 November 2016 & 1 December 2016.

[8] Final trial submissions were scheduled for 5 May 2017, however the applicant filed a s. 11(b) Charter application that was argued on that date.

[9] On 5 January 2018, the trial justice allowed that application and stayed the prosecution.

[10] The respondent appealed that decision. Arguments on the appeal were heard by Gage, J. of this court in January 2019.

[11] After a full review and analysis of all of the steps in the proceeding, the decision of the court was released on 14 March 2019. The court found that the net delay was 16 months and 15 days, 1.5 months below the Jordan presumptive ceiling.

[12] A retrial was ordered.

[13] On 11 April 2019, the matter was addressed in the Provincial Offences Court and on that appearance the respondent advised it was electing to have the matter proceed before a Judge of the Ontario Court of Justice pursuant to s. 68(2) of the OHSA.

[14] On agreement, the matter was adjourned to 18 April 2019 in the Ontario Court of Justice to be spoken to. A judicial pre-trial was scheduled for 30 April 2019.

[15] The next return date was 15 May 2019. During that appearance, the first offered trial dates were accepted: 23, 24 and 26 March 2020 and 6 & 7 April 2020. When setting those 5 dates, the applicant's counsel put the respondent and the court on notice of Charter s. 11(b) concerns.

[16] On 8 July 2020 the parties attended in court and it was confirmed that no earlier trial dates were available and the matter was adjourned for the commencement of trial before me on 23 March 2020.

[17] Following that appearance, the respondent asked that the trial coordinator inform of any earlier dates should they become available.

[18] On 15 July 2019, counsel were notified by the trial coordinator of 5 days that had become available in August 2019, commencing on 15 August and ending 22 August. The counsel for the respondent was not available on the first 3 of those dates; the applicant's counsel was available for all of the proffered dates.

[19] The trial coordinator again contacted counsel on 29 July 2019 and offered another selection of 5 dates commencing 23 September 2019 ending 10 October 2019 and the matter was brought forward for a court appearance on 12 August 2019 to address availability on the record. Respondent's counsel was available for all dates however counsel for the applicant was only available for 2 of the 5 dates, 8 and 10 October 2019.

[20] As a result, the original trial dates were confirmed and this application for stay adjourned for argument to 8 October 2019.

[21] Submissions were completed on 8 October 2019 and the decision reserved to the first scheduled trial date of 23 March 2020.

Positions of the Parties

[22] The parties are accepting of the appeal decision of Gage, J. that the net trial delay was 16 months and 15 days and that the appellate delay between 5 March 2017 to 14 March 2019 when the re-trial was ordered ought to be excluded from this court's net delay calculation.

[23] From that point however their arguments divert.

The Applicant

[24] The applicant argues that the period from 14 March 2019 until the anticipated end of trial is 12 months 25 days, which period should be added to the net delay as found by Gage, J. for a total net delay of 29 months and 10 days, well beyond the presumptive ceiling in Jordan for matters in the Ontario Court of Justice.

The Respondent

[25] The respondent submits that the presumptive ceiling and Jordan analysis are not available to corporate accused, arguing that the binding authority for corporations is R v CIP which was not specifically overturned in Jordan.

[26] While agreeing with the applicant that retrial delay commences on 14 March 19, the respondent does not agree that it should be added to the trial delay and takes issue with the calculation of the net retrial delay.

[27] The respondent's position is that retrial delay caused by defence unavailability (5 months and 29 days) results in a net retrial delay of 6 months and 27 days.

Applicable Principles

1. Jordan and Corporations

[28] I acknowledge that the Supreme Court of Canada did not specifically overturn CIP in the Jordan analysis.

[29] The issue of the application of the Jordan analysis was thoughtfully considered in the decision of Nakatsuru, J., in R v Live Nation Canada Inc. at paras. 7 to 13. I find that reasoning compelling and persuasive, particularly at paras 10 through 12, which bear repeating:

10 Another reason I reject the Crown position is that although CIP was not referred to in Jordan or its companion case R. v. Williamson, 2016 SCC 28, there was an express overruling of R. v. Askov, [1990] 2 S.C.R. 1199, Morin, and their progeny except to the extent they were applicable to cases in the transitional period. Given that CIP followed the framework set out in Morin, the clear implication is that CIP has also followed into the precedential dustbin of outdated s. 11(b) jurisprudence.

11 Finally, perhaps most importantly, a significant theoretical underpinning of the Morin framework has been removed by Jordan. This is the consideration of prejudice. The majority in Jordan was highly critical of the prejudice component of the Morin test. They described prejudice as "confusing, hard to prove and highly subjective." Under the new test, prejudice in all its forms has been taken into account in setting the presumptive ceiling. In other words, once the ceiling is breached, prejudice to any Charter-protected liberty, security of the person, and fair trial interests is presumed. For the corporate accused which does not suffer from liberty or security of the person prejudice due to delay, this aspect of the majority's decision is pivotal. Jordan holds that the accused's fair trial interests are presumed to be prejudiced once the ceiling is breached. A corporation also enjoys the same protection of its fair trial interests as a person. While the old analysis required the applicant to show "irremediable" prejudice, a prejudice that cannot be remedied by some other means or order, the Jordan test does not. To underscore that point, the majority states: "This is not, we stress, a rebuttable presumption: once the ceiling is breached, an absence of actual prejudice cannot convert an unreasonable delay into a reasonable one." (at para. 54).

12 These comments are well-considered. They are in keeping with the majority's over-all goal to provide more certainty and simplicity to trial judges. They are in keeping with the desire to make pro-active changes to the culture of complacency existing in the courts. While the rejection of prejudice as an analytical tool on a case-by-case basis is open to criticism, it is nevertheless consistent with the objectives of the majority. For me, if these goals are to be taken seriously and achieved in practice, it would make no sense to exempt a case as this from the new framework. Injecting prejudice back into the analysis for corporate defendants would impair these objectives. Thus, I find that those goals and therefore the Jordan framework apply equally to the prosecutions of corporations. I find that they apply equally to regulatory offences like those under the Occupational Health and Safety Act.

[30] In Jordan the Supreme Court sought to address the cumbersome and confusing Morin scheme while at the same time maintaining an equitable balance between the interests of an accused and those of the community.

[31] To that end, prejudice, whether incurred by individual persons or corporations in either of its pre-Jordan meanings, fully informs the presumptive Jordan ceiling. Once that ceiling is breached, there is no conversion of unreasonable delay to a reasonable one.

2. The Jordan Analysis

[32] The steps in the Jordan framework are outlined by the Ontario Court of Appeal in the decision of R v Coulter at paras 34 to 40:

34 Calculate the total delay, which is the period from the charge to the actual or anticipated end of trial (Jordan, at para. 47).

35 Subtract defence delay from the total delay, which results in the "Net Delay" (Jordan, at para. 66).

36 Compare the Net Delay to the presumptive ceiling (Jordan, at para. 66).

37 If the Net Delay exceeds the presumptive ceiling, it is presumptively unreasonable. To rebut the presumption, the Crown must establish the presence of exceptional circumstances (Jordan, para. 4). If it cannot rebut the presumption, a stay will follow (Jordan, para. 47). In general, exceptional circumstances fall under two categories: discrete events and particularly complex cases (Jordan, para. 71).

38 Subtract delay caused by discrete events from the Net delay leaving the "Remaining Delay") for the purpose of determining whether the presumptive ceiling has been reached (Jordan, para. 75).

39 If the Remaining Delay exceeds the presumptive ceiling, the court must consider whether the case was particularly complex such that the time the case has taken is justified and the delay is reasonable (Jordan, at para. 80).

40 If the Remaining Delay falls below the presumptive ceiling, the onus is on the defence to show that the delay is unreasonable (Jordan, para. 48).

3. When Does The Clock Start?

[33] In the more recent decision of R v MacIssac, the Ontario Court of Appeal considered the applicable principles for delay calculation but within the context of a retrial and having restated the Jordan methodology at para 22, stated at para 23:

[23] Unlike Jordan, however, this case concerns delay in the context of a retrial rather than a first trial. This is no small difference. The Jordan principles must be applied in a manner consistent with the Crown's duty to re-try cases as soon as possible.

[34] In MacIssac the court was addressing the issue of delay after an appeal quashing a conviction but before retrial had commenced. The trial judge considered the clock to start when the summons for retrial was issued, but the Court of Appeal found error in that finding and held that the right to be tried in a reasonable time starts on being charged with an offence and in the case of a retrial after appeal, the clock would run from the date of the appellate order for retrial: MacIssac at para 31, citing R v Potvin.

[35] In the case at bar, the prosecution of the first trial was stayed by the trial Justice of the Peace.

[36] The effect of a stay was considered by the Supreme Court of Canada in R v Jewitt. In that case the trial judge had ordered a stay of verdict based on an abuse of process. The court found that a stay on that basis is a final decision stating: "that is to say, a judgment rendered on a question of law after the accused was placed in jeopardy, such that if the accused were charged subsequently with the same offence he could plead autrefois acquit": Jewitt, at p. 145.

[37] While a Charter 11(b) stay is a remedy for unreasonable delay and not the express equivalent to a stay for abuse of process, or indeed an acquittal on the merits, the Crown is not entitled to a conviction without an appeal of that decision and a finding of guilt after retrial on the merits.

[38] Hence, I find that the clock in this instance starts with the order for a retrial made by Gage, J. on 14 March 2019.

4. Unreasonable Delay in the Retrial Context

[39] The presumptive ceiling established in Jordan did not contemplate time for a retrial. An observation noted by the Ontario Court of Appeal in MacIssac as "no small difference". The court went further in obiter comments to opine at para 27:

[27] In my view, the 18-month presumptive ceiling established for a firs trial is too long in the circumstances of a retrial. Retrials must receive priority in the system, and in the normal course retrials in the Ontario Court of Justice should occur well before Jordan's 18-month presumptive ceiling. It may be that a lower presumptive ceiling is appropriate for retrials.

[40] The court did not however articulate what that presumptive ceiling would be.

[41] MacIssac was cited with approval by the Alberta Court of Appeal in R v J.E.V. at para 38:

38 I also agree with the Ontario Court of Appeal in MacIsaac that retrials should be prioritized and ordinarily be conducted in significantly less time than the applicable presumptive ceiling for the original trial. There is a duty on every actor in the justice system to prioritize retrials and to move them forward expeditiously (see MacIsaac at paras 2, 27; R. v. Simon, 2017 ABQB 585; R. v. Bowers, 2017 NSPC 21 at para 105; and R. v. Richard, 2017 MBQB 11 at para 32)

[42] However, that court too declined to set a retrial ceiling stating at para. 40:

40 All of the above said, I am not inclined to set a quantitative ceiling for how long it should take to prepare for and complete a retrial. Setting a presumptive ceiling for retrials could unduly narrow the focus of the application to the retrial period, thereby impeding a trial judge's assessment of any delay which might already have occurred in the proceeding prior to the retrial being ordered. Such delay should be taken into consideration (for instance, Masson at paras 65-68). As stated by Paciocco, J in R v Fitts, 2015 ONCJ 746, 127 WCB (2d) 245 at paragraph 5:

Since an accused person facing a retrial will have experienced the adverse effects of the prosecution from the time the charge was initially laid, that entire period should, in my view, be taken into account. This is particularly so given that accused persons are not ordinarily responsible for the need for a second trial. A second trial becomes necessary because of judicial error, or extenuating circumstances requiring a mistrial at the first hearing. Accused persons should not, in my view, be expected to undergo unacknowledged subjection to the stress and challenges of delay simply because, through no fault of their own, the first trial failed to dispose of the matter.

[43] In the case before us, perceived judicial error was apparently the reason the appeal was conceded and the retrial ordered.

[44] The Alberta Court of Appeal did though articulate some broad considerations for the assessment of retrial time that would allow for flexibility on a case by case basis:

(a) retrial delay should be assessed in the same way (pursuant to the Jordan principles) as it is on a stay application brought during an original trial

(b) that the clock for assessing retrial delay should ordinarily start at zero from the moment the retrial is ordered;

(c) there is a presumptive expectation that retrials will be conducted on a reasonably expedited basis;

(d) that the amount of time required to complete a retrial should ordinarily be less than the presumptive Jordan ceiling applicable to the first trial; and

(e) that at least some consideration should be given to how long it took to prepare for and complete the first trial together with the amount of time it took to prepare for and complete the retrial (i.e. the time required for the proceeding as a whole), keeping in mind the various principles articulated in Jordan concerning the importance of the right to be tried within a reasonable time (see Jordan at paras. 1-5, 19-28).

Assessment of Retrial Delay

[45] There are a number of matters that factor into my assessment of retrial delay:

• The initial stay was ordered after the completion of all trial evidence;

• On the appeal of that order, Gage, J. found the net delay to be 16 months and 15 days, 1.5 months below the presumptive ceiling for trials in the Ontario Court of Justice;

• The next appearance in Provincial Offences Court was on April 11, 2019, 28 days after the order for re-trial. On that occasion the Crown gave notice that it was seeking a new trial before a judge of the Ontario court of Justice;

• At the next appearance on April 18, 2019, a judicial pre-trial was scheduled for April 30, 2019, in accordance with OCJ trial directions;

• Immediately after the pre-trial, the pre-trial judge confirmed by email to both counsel their willingness to have the matter heard by any judge, including the pre-trial judge or Gage, J., who heard the S. 11(b) appeal and ordered the retrial, in order to obtain the earliest possible dates;

• There is no evidence before me, beyond the fact that expert evidence was tendered by the defence and rebutted by the Crown with testimony from another expert, that this matter was particularly complex;

• There is no evidence of any further disclosure or other issues, such as change of counsel, that would require additional trial preparation;

• On the next court appearance, May 15, 2019, trial dates were offered and accepted for March 23rd, 24th and 26th and April 6th and 7th, 2020.

[46] There is no transcript available for that last court appearance, however the affidavit of Melissa Garay, legal assistant to counsel for the applicant, attests that the parties agreed to hold the trial dates offered, although counsel for the applicant put the Crown, the Court and trial coordinator on notice that the scheduled dates raised Jordan concerns.

[47] That evidence is not refuted by the respondent.

[48] On the next court appearance, on 8 July 2019, it was confirmed that no earlier dates were available.

[49] During the month of July 2019, there were a series of emails, the first of which was initiated by the Crown, seeking earlier dates. The trial coordinator responded with an offer of dates in mid August 2019. Three of the 5 dates offered were not available to the respondent Crown but all were agreeable to the applicant.

[50] Another series of dates were offered for 23 and 24 September 2019 and 8, 9 and 10 October 2019. The respondent was available for all of those dates but the applicant was only available for 8 & 10 October 2019.

[51] There is no evidence before me that those dates had to be accepted en bloc or that any attempts were made to secure other dates in addition to the October dates that were agreeable to both parties.

[52] On the return date of 12 August 2019, counsels' availability was confirmed on the record. On that occasion counsel for the applicant stated his intention to bring another Charter 11(b) application. At the suggestion of the court, the dates of 8 and 10 October 2019 were reserved for that application and the March and April 2020 dates preserved for trial.

[53] The respondent has submitted that of the 12 months and 25 days of retrial delay, the defence is solely responsible for the 5 months and 29 days of delay between 10 October 2019 and 7 April 2020, reducing the net delay to 6 months and 27 days.

[54] In Jordan the court identified two examples of defence delay: those situations where the defence takes deliberate tactical steps calculated to delay proceedings and circumstances when the court and the Crown are ready to proceed and the defence is not: Jordan, at paras 63 & 64.

[55] At first blush, the Crown argument holds some appeal.

[56] The applicant's reason for unavailability was a prior commitment for a long before scheduled extrajudicial bargaining unit negotiation for another client.

[57] In that regard the applicant relies on the pre-Jordan decision of R v Godin, arguing that defence counsel cannot be expected to be perpetually available.

[58] However, more recently the Ontario Court of Appeal in R v Mallozzi determined that:

Although actions that are legitimately taken to respond to the charges will fall outside of defence delay, when what prevents the matter from proceeding is simply that the defence is not available when the Crown and the court are, this constitutes defence delay and will be subtracted from the total delay.

[59] Much like R v Vidinovski, my assessment of retrial delay turns on whether defence unavailability is always to be placed at the feet of the defence. In explaining Mallozzi, Favreau, J. pointed out that the Court of Appeal did not refer to Godin and did not address whether it continues to have any relevance to post-Jordan applications for stay: Vidinovski, at para 26.

[60] In Vidinvoski, the court concluded that:

28 The focus therefore has to be on whether the delay was only caused by the defence's unavailability [emphasis mine]. In my view, the facts in this case highlight that not all instances of defence unavailability can fairly be counted as defence delay; in some cases, regard has to be given to the dates offered by the Court, and in particular whether those dates are themselves reflective of institutional delays. In this regard, I do not mean to focus on the reasonableness of defence counsel's explanation for being unavailable, but rather on whether the dates offered are reasonable.

[61] This approach conforms with the MacIssac mandate requiring all justice participants to prioritize retrials and move them forward expeditiously (MacIssac at paras 25, 27) endorsed by the Alberta Court of Appeal in J.E.V.

[62] In all the circumstances I cannot attribute the entire 5 months and 29 days solely to defence delay as it would be unreasonable to do so. My reasons are these:

1. Notably, the first offered dates were in excess of 12 months from the retrial order and the Crown and court were put on notice of the respondent's Jordan concerns when those dates were set. In a jurisdiction with seven judges, when at full complement, this speaks of unreasonable institutional delay for retrial purposes.

2. The pre-trial judge confirmed by email to counsel, their respective representatives and the trial co-ordinator on 30 April 2019 that they were willing to accept two judges who might otherwise be recused (Gage, J. and the pre-trial judge) in order to expedite retrial.

3. An exchange of emails between the trial co-ordinator and representative for Crown counsel on 15 July 2019, confirmed that those two judges were not acceptable for retrial. I do not ascribe any bad faith in that exchange, but it is illustrative of an inattention to the history of this matter which adversely affected time to retrial as it unnecessarily disqualified two of seven judges that the parties had earlier agreed to accept.

4. The Crown declined August dates when the defence was available. There is no evidence of an attempt to reassign this matter that had already been tried once.

5. Once the trial dates were confirmed on 12 August 2019, and the date set for this Charter 11(b) argument, there was no further attempt to move the matter forward by the court, the Crown or the defence.

[63] In light of those facts, I will ascribe 2 months and 15 days of the 5 months 25 days between October 2019 and the anticipated end of retrial to defence delay, for a net re-trial delay of 10 months and 15 days.

[64] No exceptional circumstances have been argued.

[65] There is no fixed presumptive ceiling for retrial time and I am not prepared to draw that red line as it would diminish the principles of reasonableness and flexibility for retrial time assessments within the Jordan construct as endorsed by the Courts of Appeal of Ontario and Alberta in MacIssac and J.E.V., respectively.

[66] It would seem though, in a retrial circumstance without complexities, under 10 days in length, in a jurisdiction with multiple judges, a range of 6 to 9 months is reasonable for a retrial.

Conclusion

[67] It has been some six years since this respondent was charged with these offences. The first trial concluded in January 2018, more than 3 and one half years after charge. That trial concluded with a stay of proceedings and after appeal of that order, a retrial ordered.

[68] That retrial was not given the priority that has been mandated by multiple appellate courts. Institutional delay was by far the most salient reason for the violation of the respondent's right to be tried within a reasonable time.

[69] For these reasons, the proceedings against the respondent are stayed.

Released: June 11, 2020

Signed: Justice P.H.M. Agro