The British Columbia Provincial Court (Court) recently dismissed charges against a corporation brought under the Fisheries Act and the Environmental Management Act (EMA), based on a finding that there had been unreasonable delay by the Crown, in R. v. HMTQ et al. The Court applied the principles from the 2016 decision of the Supreme Court of Canada (SCC) in R. v. Jordan (Jordan), confirming that the delay from the date of charge to the end of trial, including the giving of a decision, is presumptively unreasonable if the time exceeds 18 months for defendants facing regulatory prosecutions at the provincial court level. The application of Jordan to regulatory matters is likely to result in greater urgency on behalf of the courts and the Crown to move cases through the disclosure phase to a trial or resolution.

RIGHT TO BE TRIED WITHIN A REASONABLE TIME

Section 11(b) of the Charter of Rights and Freedoms (Charter) states that any person charged with an offence has the right to be tried within a reasonable time. In 2016, the SCC established a new framework to determine whether an accused has been tried within a reasonable time. There is a presumptive ceiling of 18 months on the length of time of a case proceeding as a summary matter in provincial court, from time of the charge until the end of the trial. For cases proceeding by indictment in superior courts, the presumptive ceiling is 30 months. These presumptive ceilings do not include delay that is attributable to, or waived by, the defence and do not include institutional delay that is not attributable to the Crown. Any delay that exceeds the ceiling is presumptively unreasonable, and it then falls to the Crown to demonstrate the delay is caused by exceptional circumstances outside the Crown’s control in the sense that they are (1) unreasonably unforeseen or reasonably unavoidable and (2) the Crown cannot reasonably remedy the delays arising from these circumstances.

BACKGROUND

Three defendants, a corporation, a government department and an individual, were charged with eight counts of unlawfully depositing or permitting waste or a deleterious substance to be deposited into a creek, contrary to the Fisheries Act and the EMA. The charges arose from a spill of approximately 30,000 gallons of aviation fuel into a creek from a fuel tanker truck attending a refueling station for helicopters fighting a forest fire. The charges were initially brought against the B.C. government and the refueling company under a private prosecution in September 2014. The Crown attended the subsequent court hearing in December 2014 wherein trial dates were set, but did not take over the prosecution at that time. In January 2016, the Crown entered a stay of the private prosecution and cancelled the trial dates and six months later, commenced a public prosecution against the two original defendants, plus the individual truck driver. Trial was scheduled for five weeks in early 2018.

The corporation accused sought an order from the court staying the charges on the ground that its section 11(b) Charter right to a trial within a reasonable time had been breached. The Court confirmed the principles from Jordan applied to the defendant. At issue in the application was whether the six-month stay period should count toward the delay. The Court noted that in most circumstances, the stay period would not count; however, as the Crown admitted it intended to take over the public prosecution at an early stage in the private prosecution, the Court held the stay period should be counted. The Court found the delay was presumptively unreasonable and the Crown had not provided evidence to rebut the presumption. Consequently, the charges against the defendant corporation were stayed.

COMMENTARY

The application of the principles in Jordan has significant implications the conduct of proceedings against individuals and corporations charged with regulatory offences. Typically, such proceedings have taken long periods of time before coming to a conclusion, through pleas or trial, primarily because of the extent of the evidence, often involving complex technical matters. Offence proceeding will likely progress at a faster pace than has occurred up until now, with more condensed periods for receipt and review of materials disclosed by the Crown, and for the preparation of defences, including expert evidence. In the case of federal prosecutions, it also could result in the Crown tending more towards proceeding by indictment than as summary matters, as the presumptive period for delay is considerably longer for matters heard by the superior courts.