Corporate employers who are faced with charges under the Occupational Health and Safety Act or other legislation occupy a curious position when it comes to protections afforded by the Canadian Charter of Rights and Freedoms. They may invoke some rights under the Charter, but not all. Those that can be invoked are often treated differently by the courts than the same rights as invoked by an individual defendant.
One of the rights subject to this differential treatment is been the right to be tried within a reasonable time, which is guaranteed by section 11(b) of the Charter.
A recent decision from the Supreme Court of Canada could have the effect of allowing corporations charged under the OHSA to seek remedies when a trial is unreasonably delayed in a considerably broader swath of cases.
In R v Jordan, the accused was charged with various offences under the Criminal Code in relation to a drug trafficking enterprise. The prosecution was complex and time-consuming. Ultimately, it took 44 months from the time charges were laid until the conclusion of the trial. The accused brought a motion under section 11(b), arguing that his right to be tried within a reasonable time had been infringed by the substantial delay.
In Jordan, the Supreme Court agreed that the delay was unreasonable, and permanently stayed the prosecution of the charges. A stay of proceedings is overwhelmingly the remedy provided by the Courts when unreasonable delay occurs. This serves as a permanent bar preventing the prosecution from ever proceeding.
Beyond simply staying the charges, in its decision, the Court set a new standard for assessing when the delay between charges being laid and trial becomes unconstitutional.
Prior to Jordan, the question of whether the delay in the court process was unreasonable required an accounting of each period before trial, and who was “responsible” for that delay. This analysis often focused on a great number of small, divided, periods of time. On the basis of this analysis, each period of delay was attributed either to the defence, the Crown and the courts, or as “neutral” and unavoidable. On the basis of this attribution, a decision would be made to see if the pre-trial delay occasioned by the Crown and the court system was unreasonable.
For corporate defendants, another hurdle existed. Corporations charged with offences had to prove that the delay had resulted in prejudice. In other words, the corporation would have to prove that the delay had irreparably harmed their ability to defend themselves against the charges. This was a very high bar to meet, and historically led to very few successful uses of such a Charter challenge by a corporation.
The court in Jordan overhauled the test under section 11(b). No longer is a detailed, minute breakdown of the periods prior to trial required. In its place, the court instituted a bright line test for delay. If taking a case to trial takes longer than certain fixed periods set by the Court, that delay would be presumptively unreasonable, subject to established, extremely narrow exceptions. Delay caused by the defence does not count toward this bright-line evaluation, but otherwise, the meaning for the delay is in most cases irrelevant.
Interestingly, the Court specifically said that prejudice does not need to be proven under the new test. It specifically pointed to the difficulty in proving prejudice as being part of the rationale for the new test. Presumably this eliminates that requirement for corporations invoking the defence.
For criminal offences tried in the provincial court (the court in which charges under the OHSA are prosecuted), the Supreme Court set a ceiling of delay of 18 months. This means that, from the time charges are laid to the time that a trial concludes, no more than 18 months can elapse or the delay is presumptively unreasonable and therefore in breach of the Charter rights of the accused.
This may very well mean that corporate defendants may be able to invoke their Charter rights under section 11(b) to seek stays of prosecutions that take longer than this prescribed amount of time, including in OHSA prosecutions. There does not appear to be any basis to suggest that a time period different than that set out in Jordan should apply to prosecutions under the OHSA.
There are some caveats to the decision in Jordan. First, Jordan was a criminal case, involving an individual accused rather than a corporation. The Court did not specifically repeal the test applicable to corporations, although given that that test was predicated on law overturned in Jordan, it appears likely that corporations would be protected by the Jordan test. In addition, Jordan does not explicitly speak to delay in the context of a prosecution of a provincial offence, such as one under the Occupational Health and Safety Act.
However, historic cases suggest that the same protection afforded in criminal cases under the Charter will most likely be afforded to defendants in OHSA prosecutions.
Although we have yet to see a case in which Jordan is invoked in a health and safety matter, it is likely only a matter of time until we have a judicial pronouncement on the application of Jordan to corporate defendants, and more specifically, those charged with offences under the OHSA.