On September 5, 2017, Justice Nelson of the Ontario Court of Justice stayed all charges against the accused in the deadly stage collapse at the Radiohead concert in Downsview Park on June 16, 2012. These charges under the Occupational Health & Safety Act are the latest in a series of serious charges relating to regulatory and criminal charges, across Canada, that have been stayed as a result of the Jordan decision of the Supreme Court of Canada.
The charges were stayed for breach of the constitutional right, under the Charter of Rights and Freedoms, to a trial within a reasonable period of time under section 11(b) of the Charter of Rights and Freedoms.
Radiohead, a British band, was scheduled to perform at a concert in Toronto at Downsview Park. A number of hours prior to the start of the concert, the stage superstructure collapsed. Scott Johnson, a drum technician, was fatally injured. Others were seriously injured.
On June 6, 2013, the Ministry of Labour laid charges against a number of parties under the Occupational Health and Safety Act, including but not limited to, Live Nation Canada Inc., Optex Staging & Services Inc., and the professional engineer who provided advice and engineering drawings and certification, Domenic Cugliari.
The case was serious and complex. It proceeded to trial in November 2015 before Justice Nakatsuru. Although during that trial, there had been an Application for Delay, after the Jordan decision was released by the Supreme Court of Canada in early July 2016, it was rejected by the first trial judge. However, on April 12, 2017, weeks before the final, closing argument was to be made on the trial, Justice Nakatsuru was appointed to the Ontario Superior Court of Justice by the Federal Attorney General. As a result, and under directions from the Federal Department of Justice not to do any further work on any matter, Justice Nakatsuru ruled that he had no jurisdiction to continue the trial and declared a mis-trial.
The mis-trial resulted in the appointment of a new trial judge, new court dates being set, and the application that was ruled on by the second trial judge on September 5, 2017. Justice Nelson said, in summarizing her ruling,
" A stay in the circumstances of an 11b violation signals a failure on the part of the administration of justice. Such a failure impairs the reputation of our justice system. In a case such as this one, that failure also has a significant negative impact on the parties, those injured as a result of the stage collapse and most notably on the family of Scott Johnson. No doubt this decision will be incomprehensible to Mr. Johnson's family who can justifiably complain that justice has not been done."
The bizarre and inexplicable policy and practice of the Department of Justice and the Federal government to not allow Justice Nakatsuru to complete the trial, which was in its final stages, after his appointment to the Superior Court of Justice in Ontario, is shocking and inexplicable. It found its way into the Reasons for Judgment by Justice Nelson in paragraph 70:
" Both Cugliari and Live Nation submit that Justice Nakatsuru's appointment should not be treated as a discrete event because although unforeseen by the Crown in this case, it was not unforeseen by the state. Further, the state failed to take reasonable steps to mitigate any delay that did ensue. Specifically, counsel point to the following:
- The Provincial government failed to pass legislation which would have permitted Justice Nakatsuru to complete the trial;
- Justice Nakatsuru would have known that he was presiding over this trial when he applied to the Superior Court bench thus risking the mistrial;
- Justice Nakatsuru could have deferred his appointment until after he completed this case;
- The Federal government should have ensured that Justice Nakatsuru was not appointed until this trial was completed.
Although the Crown Prosecutor persuaded Justice Nelson that the judicial appointment was a discrete exceptional event, it still did not permit this type of overall delay that occurred in this case. The trial justice held that even if one was to give thirty (30) months to complete this type of trial, rather than the presumptive eighteen (18) months, that the delay still far exceeded that period of time; the case having been in the judicial system for almost five (5) years. The Court said, at para. 107:
" If this trial finished in May 2018, it will have been in the system for almost 5 years – over 3 times the presumptive ceiling for delay in this Court of 18 months. This case was a complex case that required more time than other cases in the system. A series of unavoidable discrete events added to the challenges of this case. After allowing for all of the exceptional circumstances that were in play, this case still will have taken too long to complete. The 11b rights of both applicants have been breached. The remedy for this breach is a stay of proceedings pursuant to s. 24(1) of the Charter.
The press release from the President of the Ontario Federation of Labour, Chris Buckley, said:
"We are shocked and saddened with the decision to stay the charges…our judicial system failed the family of Scott Johnson, the worker who was killed and the three workers who were injured."
The obvious failure on the part of the federal and provincial governments to have legislation that contemplated the appointment of an Ontario Court of Justice, provincially appointed judge, being "promoted" by the federal government to the Superior Court of Justice, for which the applicant must apply, is without rationale, explanation or excuse. Governments have neglected the administration of justice, not only in avoiding lengthy delays as in this case, but also in the administration of justice. Apparently no politicians were prepared to comment on the Radiohead decision, in particular both the provincial and federal Attorney-Generals, who have responsibility for ensuring that the administration of justice is performed in accordance with Constitution and Charter values.
Although health and safety prosecutions in and of themselves, may do little to satisfy victims, and their families, there is still an important aspect of the enforcement of Occupational and Health and Safety laws in Canada. The failure to have a decision on the merits, even considering the exceptional circumstances of this case, is a failure of the justice system plain and simple.