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
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.
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
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
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
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
Ultimately, the court stayed the charges.
Implications for Regulatory Offences
For corporations facing regulatory charges, Stephensons
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
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
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
The use of electronic signatures is becoming increasingly commonplace in commercial transactions, as individuals and businesses capitalize on the administrative efficiency afforded by today’s digital world.
Following the Divisional Court's decision in Toronto-Dominion Bank v. Ryerson University, companies that contract with government institutions should be aware that such contracts are likely open to disclosure under the Freedom of Information and Protection of Privacy Act.
Back in April 2015, we discussed key questions to keep in mind when negotiating earn-outs, and looked at recent trends coming out of the American Bar Association's 2014 Canadian Private Target M&A Deal Points Study (the 2014 ABA Study).
Before sending out that next tweet or posting to a blog, hit the pause button and consider whether the timing and content pass muster. Reporting issuers and their representatives must take note of Staff Notice 51-348
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).