Canada: Unreasonable Delay In Environmental Prosecutions After R V Jordan: Where Are We Now

The 2016 Supreme Court of Canada decision in R v Jordan, 2016 SCC 27, created a major stir in the criminal bar by clarifying what constitutes an accused's right under subsection 11(b) of the Charter to be tried within a reasonable time.

There was speculation at the time of the decision's release about its impact upon environmental prosecutions. Approximately 1.5 years since that time, a number of decisions have applied R v Jordan to environmental prosecutions. Below, we survey some of the most salient points from this emerging jurisprudence.

Clarifying unreasonable delay

R v Jordan set out "ceilings" establishing the maximum reasonable amount of time that can elapse from the laying of charges upon an accused until the end of his or her trial. For matters tried in Provincial Court, the ceiling established by the Supreme Court is 18 months; for matters tried in Superior Court, the ceiling is 30 months. The Court also clarified that there is a presumption that delays exceeding these ceilings are harmful; where a proceeding's delay exceeds the ceiling, the prosecution must be stayed unless the Crown can establish that certain exceptional circumstances are responsible for the delay. If, on the other hand, a proceeding's total delay is less than the ceiling, the defence bears the onus of demonstrating the delay is unreasonable.

To rebut the presumption of unreasonableness, the Crown must show there were issues beyond its control that were reasonably unforeseen or unavoidable and that the resulting delay could not reasonably be remedied once it arose. Exceptions generally fall under two categories: discrete events and particularly complex cases. A court may also consider whether transitional exceptional circumstances justify a presumptively unreasonable delay.

R v Jordan has had a huge impact upon criminal prosecutions, particularly those that had at the time of the decision's release already been languishing in the system. Hundreds (perhaps thousands) of pending criminal cases, even those involving serious charges such as first degree murder, are either facing the possibility of being stayed for unreasonable delay or have already been stayed for that reason.

However, the impact of R v Jordan upon those persons—largely corporations—charged with environmental offences was less obvious. The often highly technical nature of environmental offences means that such delays are not uncommon, as extensive collection and analysis of data is often required.

Application to environmental prosecutions

The Ontario Court of Justice ruling in R v Stephenson Rental Services (a prosecution under the Occupational Health and Safety Act) provided some clarity by confirming that the ceilings established in R v Jordan apply to the prosecution of regulatory offences where the accused is a corporation as opposed to a natural person.

Since then, several decisions involving environmental prosecutions have applied the framework found in R v Jordan, providing some clarity as to when delays exceeding 18 months will require a stay on account of exceptional circumstances. Several of these decisions are worth reviewing.

In R v The Lake Louise Ski Area Ltd, 2017 ABPC 262, the Provincial Court of Alberta refused a defendant's application for a stay despite an 841 day (2.3 year) delay. The defendant was facing charges under the Species at Risk Act for cutting down listed tree species and had argued that it was not in a position to plead until the Crown arranged for DNA testing to confirm the species of the tree. The Court, however, found that an expert report confirming the tree species provided by the Crown with its initial disclosure was sufficient. Insofar as its actions had created the delay, the Defendant had implicitly waived its 11(b) rights.

In R v HMTQ et al, 2017 BCPC 371, the Provincial Court of British Columbia confirmed that the Charter applies to private prosecutions. There, a private citizen initially laid an information against a corporate defendant in relation to offences allegedly committed under the Fisheries Act and the BC Environmental Management Act following a spill of aviation fuel into Lemon Creek in July 2013. The prosecution was eventually taken over by the federal Public Prosecution Service, and by the time that trial was anticipated to conclude (less delay resulting from the Defendant's actions), 24 months were expected to have passed from the time that the private prosecutor had laid the information.

The Court also held that a calculation of the time ceiling under a reasonable delay analysis must begin from when an information is first laid by a private prosecutor—even if the Crown later takes over the prosecution.

In R v HMTQ, although the delay exceeded the 18-month ceiling set in R v Jordan, the Court found that the period between the stay of proceedings until the laying of the new charges should count towards delay. In this case there were no exceptional circumstances that allowed the Crown to rebut the presumption of unreasonable delay: there was no evidence the Crown took any steps to mitigate the delay or to move the matter along expeditiously once it re-laid charges. The fact that the Crown intended to call 50 witnesses also was insufficient to establish exceptional circumstances existed.

Recently, an Ontario Court of Justice decision applied the Jordan framework to stay one of three proceedings in a complex environmental prosecution. In Halton Region Conservation Authority v Ahmad, 2017 ONCJ 858, there were 3 informations and 37 defendants—comprising both corporations and individuals—that were charged with a total of 770 charges contrary to subsection 28(16) of the Conservation Authorities Act.

The Court calculated that the total delay in the prosecution of the charges under each of the three informations far exceeded the 18-month ceiling. However, only in one instance was the Crown unable to rebut the presumption of unreasonableness—under the "transitional exceptional circumstance" exception (delay justified based on the parties' reasonable reliance on the pre-Jordan law on delay). The Court found that the individual defendants, but not the corporate defendants, suffered prejudice to their rights in a manner that ran counter to the pre-existing law.

Only extreme inclement weather and witness illness qualified as "exceptional circumstances". Although the proceeding involved a great number of charges, parties, and witnesses, these factors alone did not render the proceeding sufficiently complex to justify the delay. Acknowledging that environmental proceedings of this nature involved technical and scientific evidence that make them significantly more complex than most regulatory offences and some criminal offences, the Court clarified that something more would be required to justify a characterization of the proceedings as being "particularly complex."

Conclusions

The factual and evidentiary complexities involved in environmental prosecutions make them particularly susceptible to delays. As such, it is very likely that R v Jordan will continue to play a role. Parties to environmental prosecutions will want to consider a few salient points that have emerged from some of the decisions to apply R v Jordan thus far:

  • The Crown will want to have its evidentiary case in as advanced a state as possible by the time it is ready to lay an information, perhaps delaying the laying of an information as long as applicable statutory limitation periods allow;
  • Despite their inherent technical and scientific complexity, only uniquely complex environmental proceedings, or aspects thereof, will justify characterizing the proceedings as "particularly complex";
  • Individual rather than corporate defendants are more likely to be able to demonstrate prejudice;
  • Defendants seeking to argue reasonable delay down the line will need to be extremely cognizant of the impacts of their own actions in contributing to any delay. This includes insisting on supplementary evidence from the Crown that a Court might later consider to be unnecessary in light of the existing evidentiary record. Defence counsel availability for trial and failure to obtain appropriate instructions from defendants may also be seen as contributing to delay.
  • Defendants also need to remain aware of how, through their actions, they may been seen to implicitly waive their 11(b) rights, including by seeking or agreeing to adjournments; and
  • There is a fine line between a "particularly complex" case that justifies a delay that exceeds the R v Jordan ceiling and a case that is merely unwieldy and would not, therefore, qualify.

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.

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