Written by Venetia E. K. Whiting, Ranjan K. Agarwal, and Julia E. Schatz

Corporate defendants have the right to a speedy trial, without requiring them to prove actual prejudice to their fair trial rights. In R v Stephensons Rental Services, a March 2017 decision of the Ontario Court of Justice, the court, following the Supreme Court’s landmark decision in Jordan, held that the corporate defendant's right to be tried within a reasonable time under section 11(b) of the Canadian Charter of Rights and Freedoms had been breached, and stayed the charge under the Occupational Health and Safety Act.

Background

Stephensons Rental Services was charged in 2012 under the Occupational Health and Safety Act after a workplace fatality at the GM Plant in St. Catharines. The Crown alleged that Stephensons had provided mechanically defective equipment.

Stephensons brought a delay application in January 2017. At that time, the case had already been in the system for over four years, and the court projected that by the end of the trial, the total delay would have been at least five years. The defendant had previously asserted that the proceeding breached its right to a speedy trial.

The court agreed, finding that the Crown had caused the delay by, among other things, providing disclosure incrementally; failing to appear at hearing dates; and providing substantial additional disclosure the morning the trial was to begin.

Application of Jordan

Jordan revises the framework for determining what constitutes unreasonable delay under section 11(b) of the Charter. A delay exceeding 18 months is presumptively excessive for criminal cases before the provincial court. As the total delay in this was case was over 55 months, the Crown had the burden of proving that the delay was not unreasonable.

As a preliminary issue, the Crown argued that Jordan did not apply to corporations and did not overturn a corporation’s requirement to prove actual prejudice to their section 11(b) rights, as established by the Supreme Court in CIP. The court rejected both of these arguments, finding that Jordan does apply to corporations and changed “the culture of delay in the justice system as a whole.”

Since Jordan applies to corporations, the court went on to consider the total delay in this case. Delay that can be attributed to the defence does not count towards the presumptive 18-month ceiling. Apart from nine days when the defence was not available for a continuation date, the court found no portion of the delay attributable solely to the defendant’s conduct. Accordingly, the court found that net delay was projected to be at least 60 months—41 months higher than the presumptive ceiling for delay in provincial court.

The Crown tried to argue that discrete events and the complexity of the case were beyond the Crown's control and not reasonably foreseeable and, therefore, constituted “exceptional circumstances” as established in Jordan. The court rejected both of these arguments, finding that a disclosure issue and a trial adjournment were not unforeseeable and unavoidable events, and that the case was not complex—it involved a single corporate accused charged with a single offence.

Finally, the court considered whether transitional exceptional circumstances existed—namely, whether the Crown had satisfied the court that the time the case had taken was justified based on its reasonable reliance on the law as it existed before Jordan. Here, the defendant raised the issue of unreasonable delay before the trial began, putting the Crown on notice of its position. As such, the Crown failed to prove the transitional exception.

Ultimately, the court stayed the charges.

Implications for Regulatory Offences

For corporations facing regulatory charges, Stephensons is instructive:

• Jordan applies to corporations—there is an 18-month (provincial court) or 30-month (superior court) ceiling and a corporation does not have to prove prejudice, and
• the Crown cannot rely on the pre-Jordan requirement that the defendant prove prejudice to justify delaying disclosure and delaying proceedings as a transitional exceptional circumstance.

However, this was "not a close case" in terms of assessing delay and (the lack of) exceptional circumstances. Rather, "issues of delay were front and centre from the outset" and the defence had not used Jordan opportunistically. We have yet to see the scope of exceptional circumstances in more complex prosecutions and this decision may be appealed.