by Norm Keith
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 (OHSA) are the latest in a series of serious regulatory and criminal charges across Canada that have been stayed for unreasonable delay as a result of the Jordan decision of the Supreme Court of Canada.
Radiohead, a British band, was scheduled to perform at a concert in Toronto at Downsview Park. A number of hours before 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 OHSA, including but not limited to, Live Nation Canada Inc., Optex Staging & Services Inc., and Domenic Cugliari, the professional engineer who provided advice and engineering drawings and certification.
The case was serious and complex. It proceeded to trial in November 2015 before Justice Nakatsuru.
After the Jordan decision was released by the Supreme Court of Canada in early July 2016, there was an Application for Delay, but it was ultimately rejected by the first trial judge.
On April 12, 2017, weeks before the final closing argument was to be made, 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 mistrial.
The bizarre policy and practice of the Department of Justice and the federal government to not allow Justice Nakatsuru to complete the trial following 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 the type of overall delay that occurred in this case. Justice Nelson concluded that even if one was to give 30 months to complete this type of trial, rather than the presumptive 18 months, the delay still far exceeded that period of time, the case having been in the judicial system for almost five years.
As a result, Justice Nelson stayed the charges for breach of the constitutional right to a trial within a reasonable period of time under section 11(b) of the Charter of Rights and Freedoms.
While 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.